Australian Property Law: Cases, Materials and Analysis [5 ed.] 0409351229, 9780409351224

Table of contents :
Dedication
Australian Property Law: Cases, Materials and Analysis, Fifth Edition
Imprint page
Contents
Preface
Cases
Statutes
Chapter 1: Concepts of Property
Chapter 2: Possession, Title and Personal Property
Chapter 3: Fixtures, Encroachment and Boundaries
Chapter 4: Adverse Possession
Chapter 5: The Doctrine of Tenure and Estates
Chapter 6: Restraints on Alienation and the Rule Against Perpetuities
Chapter 7: Leases
Chapter 8: Native Title
Chapter 9: Equitable Interests
Chapter 10: Priority Rules
Chapter 11: The Torrens System
Chapter 12: Electronic Conveyancing
Chapter 13: Unregistered Interests
Chapter 14: Easements
Chapter 15: Restrictive Covenants
Chapter 16: Mortgages
Chapter 17: Co-Ownership
Index
Related LexisNexis Titles

Citation preview

Australian Property Law Cases, Materials and Analysis Fifth Edition



For my children



Australian Property Law Cases, Materials and Analysis Fifth Edition Samantha Hepburn BA, LLB (Mon), LLM, PhD (Melb) Professor, Faculty of Business and Law, Deakin University

LexisNexis Australia 2021

LexisNexis AUSTRALIA LexisNexis 475–495 Victoria Avenue, Chatswood NSW 2067 On the internet at: www.lexisnexis.com.au ARGENTINA LexisNexis Argentina, Buenos Aires AUSTRIA LexisNexis Verlag ARD Orac GmbH & Co KG, Vienna BRAZIL LexisNexis Latin America, Sao Paulo CANADA LexisNexis Canada, Markham, Ontario CHILE LexisNexis Chile, Santiago CHINA LexisNexis China, Beijing, Shanghai CZECH REPUBLIC Nakladatelství Orac sro, Prague FRANCE LexisNexis SA, Paris GERMANY LexisNexis Germany, Frankfurt HONG KONG LexisNexis Hong Kong, Hong Kong HUNGARY HVG-Orac, Budapest INDIA LexisNexis, New Delhi ITALY Dott A Giuffrè Editore SpA, Milan JAPAN LexisNexis Japan KK, Tokyo KOREA LexisNexis, Seoul MALAYSIA LexisNexis Malaysia Sdn Bhd , Petaling Jaya, Selangor NEW ZEALAND LexisNexis, Wellington POLAND Wydawnictwo Prawnicze LexisNexis, Warsaw SINGAPORE LexisNexis, Singapore SOUTH AFRICA LexisNexis Butterworths, Durban SWITZERLAND Staempfli Verlag AG, Berne TAIWAN LexisNexis, Taiwan UNITED KINGDOM LexisNexis UK, London, Edinburgh USA LexisNexis Group, New York, New York LexisNexis, Miamisburg, Ohio

ISBN:

9780409351224 (pbk). 9780409351231 (ebk).

© 2021 Reed International Books Australia Pty Limited trading as LexisNexis. First edition 2008; Second edition 2012; Third edition 2015 (reprinted 2017); Fourth edition 2018 (reprinted 2018, 2019 (two times) and 2020). This book is copyright. Except as permitted under the Copyright Act 1968 (Cth), no part of this publication may be reproduced by any process, electronic or otherwise, without the specific written permission of the copyright owner. Neither may information be stored electronically in any form whatsoever without such permission. Inquiries should be addressed to the publishers. Typeset in Arial, Minion Pro. Printed in Australia. Visit LexisNexis at www.lexisnexis.com.au

Contents Prefacexxiii Casesxxv Statuteslxxvii

1 Concepts of Property

1

Characteristics of Western Property Interests 2 Private property 2 Associated property rights 4 Property as the Law of Things5 Commentary10 Property is a relationship 11 Yanner v Eaton11 Commentary18 Property is a legal construct 20 Fragmentation of property 20 Distinction Between Proprietary and Contractual Rights 21 Nature of the distinction 21 Lease or licence? 22 Cowell v Rosehill Racecourse Co Ltd22 Commentary33 Overview of the distinction between property and contract 35 Rationales for ‘private’ property 36 Classical liberalism: natural rights and the social contract 37 Utilitarianism38 Socialism perspectives 38 Modernist: legal positivism 39 Contemporary perspectives 40 Revision Questions42 Property and the environment 42 Property Rights and the Environment43 Climate Change and the Evolution of Property Rights45 Commentary47 Non-Private Resources 48 Resources outside of ownership: res communes 48 Boundaries of Ownership: Resources Incapable of Ownership 50 Rights to a spectacle 50 Victoria Park Racing and Recreation Grounds Company Ltd v Taylor50 Commentary62 Resources incapable of ownership: moral boundaries 63 v



Australian Property Law

Resources incapable of ownership: common heritage of humanity

65

Revision Questions68

Overview — Categorisation of Property Objects

2 Possession, Title and Personal Property

69

70

The Meaning of Possession: Land and Goods 71 Finders Keepers Rule 72 The Scope of Possessory Title 73 Doodeward v Spence74 Commentary74 GLS v Russell Weisz75 Commentary80 The Natural Law Duty to Recognize Private Property Ownership: Kant’s Theory of Property in His Doctrine of Right80

Revision Questions84

Enforceability of Possessory Title 85 Asher v Whitlock85 Commentary86 Perry v Clissold87 Commentary88 Possession and Crown Title: Toohey J in Mabo v Queensland (No 2) 88 Commentary92 Revision Questions93 The Finders Keepers Rule 93 Waverley Borough Council v Fletcher95 Commentary102 Bailment: Consensual Acquisition of Possession 103 Possession of Goods: The Jus Tertii Defence 105 Costello v Chief Constable of Derbyshire Constabulary107 Commentary113 Revision Questions113 The PPSA 114 Revision Questions118 Possession and Seisin 118 Seisin and Possession as the Basis of Legal Title119 Remedies for Real and Personal Property 120 Revision Questions121

3 Fixtures, Encroachment and Boundaries The Doctrine of Fixtures Degree of annexation

122

123 124 Elitestone Ltd v Morris126 Commentary129 Object of annexation 131 The intention of the affixer 131 The nature of the chattel 132 Overall circumstances 133 vi

Contents

Tenant’s rights to remove Fixtures and third parties



134 137

Metal Manufactures Limited v Federal Commissioner of Taxation139

Commentary143 Other statutory provisions 145 Revision Questions145 Fixtures and the PPSA 146

Power Rental Op Co Australia, LLC v Forge Group Power Ltd (in liq) (receivers and managers appointed)146

Commentary156 The Enduring Relevance of the Common Law Fixtures Text 156 Revision Questions157 Boundaries: Land Abutting Water 158 Tidal water boundaries 158 Non-tidal water boundaries 161 Water rights 162 The doctrine of accretion and avulsion 165 Williams v Booth165 Commentary167 Revision Questions168 Boundaries and Encroachments for Land 169 Error in title 169 Contractual errors 169 Fence boundaries 170 Encroachments on to land 171 Revision Questions174 Answer Plan174

4 Adverse Possession

176

The Meaning of Adverse Possession Outline of the Title Hierarchy The Nature of Adverse Possession Policy Rationales Underlying Adverse Possession

177 178 179 180 ‘Should the Law Recognise the Acquisition of Title by Adverse Possession?’182 Revision Questions184 Limitation Period 185 Against which Owner? 189 Factual Possession 191 Open and peaceful 192 Without consent 196 Revision Questions197 Intention to Possess: Animus Possidendi 197 JA Pye (Oxford) Ltd v Graham198 Commentary207 Whittlesea City Council v Abbatangelo209 Commentary220 vii



Australian Property Law Revision Questions222

Multiple Possessions

222

Kierford Ridge Pty Ltd v Ward224

Commentary226 Disability and Fraud 227 Adverse Possession and the Torrens System 229 Revision Questions231 Answer Plan232

5 The Doctrine of Tenure and Estates

233

English Feudal Tenure What is tenure? English feudal history

234 234 234 Feudal Tenure and Native Title: Revising an Enduring Fiction235 Revision Questions237 Australian Tenure 238 Feudal Tenure and Native Title: Revising an Enduring Fiction239 Revision Questions247 Tenure and Radical Title 247 Disinterested Truth: The Legitimation of Feudal Tenure Post Mabo249 The doctrine of estates 252 Freehold estate 253 Fee simple 253 Life estate 255 Future interests: remainder and reversion 256 Vested and contingent interests 257 Determinable or conditional? 259 Zapletal v Wright260 Commentary261 Legal contingent remainders 262 Legal remainder rules 262 Overview of Estates 265 Revision Questions268

6 Restraints on Alienation and the Rule Against Perpetuities269 Scope and Purpose of the Rule Restraining Alienation 270 Hall v Busst272 Commentary273 Nullagine Investments Pty Ltd v Western Australian Club Inc277 Commentary280 Elton v Cavill (No 2)280 Commentary281 Public policy and inalienability 283 Revision Questions284 The Rule Against Perpetuities 284 viii

Contents

Common law rule



285

Cram Foundation v Corbett-Jones287

Commentary289 Scope of the common law rule 290 Life in being 291 Certainty requirements 293 Statutory rule against perpetuities 293 Class gifts 294 Class-closing rules 295 Yeomans v Yeomans297 Commentary298 Understanding the Rule Against Perpetuities: Adopting a Five Step Approach to a Perpetuities Problem299

The Rule Against Perpetuities: An Overview

303

Revision Questions304

7 Leases

305

The Nature of a Lease: Non-Freehold Estate 306 Types of Leases 308 (i)  Fixed-term tenancy308 (ii)  Periodic tenancy308 (iii)  Tenancy at will309 (iv)  Tenancy at sufferance310 Validation Requirements 310 Statutory Formalities for the Creation of Common Law Leases 311 Exclusive Possession 312 Radaich v Smith312 Street v Mountford315 Commentary322 Swan v Uecker326 Commentary338 Revision Questions339 Certainty Requirements 339 Equitable Leases 341 Walsh v Lonsdale342 Commentary342 The doctrine of part performance 344 Tenancy by estoppel 344 Crown Melbourne Limited v Cosmopolitan Hotel (Vic) Pty Ltd345 Commentary355 Revision Questions356 Common Law Rights and Duties 357 Reasonable habitability 357 Landlord’s duty of care 357 Jones v Bartlett357 Commentary364 ix



Australian Property Law

Duty to Provide Tenant with Quiet Possession/Duty Not to Derogate365 Tenant’s Duty to Use the Premises in a Tenant-Like Manner 367 Miscellaneous tenant duties 368 Express contractual duties 368 Specific statutory duties 370 Revision Questions387 Assignment and Sub-Letting 387 Qualification of the right 388 Privity of contract 390 Privity of estate 390 P&A Swift Investments v Combined English Stores Group392 Commentary394 Remedies395 Right of re-entry 395 Termination and repudiation 396 Gumland Property Holdings Pty Ltd v Duffy Bros Fruit Market (Campbelltown) Pty Ltd400

Commentary407 The doctrine of frustration 408 Merger and surrender 409 Revision Questions410

8 Native Title

411

Pre-Mabo Position 412 Commentary413 The Mabo Decision 414 Revisiting sovereignty assumptions 414 Radical Title 416 Common Law Native Title 417 Extinguishment422 Common Law Doctrine of Extinguishment: More than a Pragmatic Compromise424

Commentary427

Revision Questions427

Statutory Recognition of Native Title 428 Commentary429 Traditional Laws and Customs 429 Members of the Yorta Yorta Aboriginal Community v Victoria429 Commentary444 Bodney v Bennell447 Commentary454 Revision Questions456 Yanner v Eaton456 Commentary463 Extinguishment Tests 465 x

Contents



Wik and the Scope of Common Law Extinguishment 466 Wik Peoples v Queensland467 Commentary479 Revision Questions480 Western Australia v Ward480 Commentary487 Fejo v Commonwealth488 Commentary492 Native Title and Coastal Waters 494 Akiba v The Commonwealth496 Commentary503 The Native Title Act: An Outline of Key Provisions 504 Recognition of native title 505 The determination of native title 505 Validation and confirmation of past Acts 506 Validation of intermediate period Acts 507 The Assessment of Compensation under the NTA 510 Economic value 512 Interest on economic value 512 Non-economic value: Cultural or spiritual value 512 Northern Territory v Griffith513 Future Act Regime 523 The registration test 525 Right to negotiate 526 ILUAs527 Revision Questions529 NTA Overview 529 Categorisation of Crown Grants Under NTA 530 Effect of Validation on Native Title 531 Future Act Regime: Nature, Effect and Requirements 532

9 Equitable Interests The Equitable Jurisdiction The Difference Between Common Law and Equitable Interests Different Forms of Equitable Title Express equitable interests Elements of a trust

533 534 535 538 538 539

Westdeutsche Landesbank Girozentrale v Islington London Borough Council539

Commentary539 DKLR Holding Co (No 2) Pty Ltd v Commissioner of Stamp Duties (NSW)540 Commentary542 Formality Requirements for the Creation of Express Trusts 543 Formality Requirements for the Creation of Equitable Interests in Land: Statute of Frauds 543 Revision Questions547 xi



Australian Property Law

Doctrine of Part Performance 547 Pipikos v Trayans548 Commentary554 Implied Equitable Interests 555 Resulting trusts 555 Failed Express Trust 555 Specific Purpose Loan 556 Revision Questions558 Contributions to Property: Purchase Money Resulting Trusts 558 Trustees of the Property of Cummins (a bankrupt) v Cummins562 Commentary566 Other Forms of Implied Equitable Interests: The Equitable Lien 566 Imposed Equitable Interests 567 Remedial constructive trust 567 Muschinski v Dodds567 Commentary576 Baumgartner v Baumgartner578 Commentary585 Giumelli v Giumelli586 Commentary589 Revision Questions591 The Institutional Constructive Trust 591 Lysaght v Edwards591 Commentary592 Tanwar Enterprises Pty Ltd v Cauchi594 Commentary597 Revision Questions599 The Personal (Mere) Equity 599 Latec Investments Ltd v Hotel Terrigal Pty Ltd (in liq)601 Commentary609 Revision Questions610 Overview of Equitable Proprietary Interests 610

10 Priority Rules

612

Relevance of Priority 613 Legal Interests 613 Formalities613 Commentary614 Manton v Parabolic Pty Ltd615 Commentary616 Digital Signatures 617 Chain of Title 620 Nemo Dat Principle 620 Equitable Interests 621 Multiplicity622 Priority Rules 622 xii

Contents

Prior legal and subsequent equitable



622

Northern Counties of England Fire Insurance Co v Whipp623

Commentary625

Revision Questions626

Prior Equitable Title and Subsequent Legal Title 626 Pilcher v Rawlins627 Commentary629 The Doctrine of Notice 630 Revision Questions638 Tacking: Tabula in Naufragio 638 Wilkes v Spooner Rule 639 Competing Equitable Interests 640 Rice v Rice640 Commentary644 Estoppel645 Revision Questions647 Prior Mere Equity and Subsequent Equitable Interest 648 Latec Investments Ltd v Hotel Terrigal Pty Ltd (in liq)649 Ruthol v Mills651 Commentary658 Revision Questions659

11 The Torrens System

660

An Outline of the Torrens System: Old Title Land, the Deeds Registration System and Conversion of Old Title 662 Objectives of the Torrens System 665 Characteristics of the Torrens System 667 The Register 667 Registrable interests 667 Paramount interests 670 Indefeasibility of Title: the Statutory Provisions 671 Commentary674 Immediate and deferred indefeasibility 679 Gibbs v Messer679 Commentary680 Frazer v Walker681 Commentary682 Breskvar v Wall683 Commentary688 Mercantile Credits v Shell Co of Australia Ltd691 Commentary693 Revision Questions695 Statutory Exceptions to Indefeasibility 695 Statutory fraud 695 Loke Yew v Port Swettenham Rubber Co696

xiii



Australian Property Law

Commentary697 Bahr v Nicolay (No 2)697 Commentary699 Russo v Bendigo Bank701 Commentary709 Bank of South Australia v Ferguson711 Commentary714 Cassegrain Pty Ltd v Gerard Cassegrain715 Commentary720 In Personam Exception 722 Bahr v Nicolay (No 2)723 Commentary726 Macquarie Bank v Sixty-Fourth Throne727 Commentary733 LHK Nominees Pty Ltd v Kenworthy735 Commentary737 Farah Constructions Pty Ltd v Say-Dee Pty Ltd737 Commentary741 Revision Questions744 Volunteers744 King v Smail745 Commentary749 Rasmussen v Rasmussen749 Valoutin Pty Ltd v Furst754 Commentary755 Bogdanovic v Koteff756 Commentary758 Conlan v Registrar of Titles758 Commentary760 Revision Questions761 Inconsistent Legislation 761 Pratten v Warringah Shire Council762 Commentary765 Horvath v Commonwealth Bank of Australia766 Commentary772 Hillpalm v Heavens Door773 Commentary778 City of Canada Bay Council v Bonaccorso Pty Ltd779 Commentary788 Revision Questions789 Prior Certificate of Title/Erroneous Description of Land 790 Forgery, Insufficient Power of Attorney or Disability 791 Paramount Interests: Adverse Possession, Easements and Tenancies 792 Adverse possession 792 Variations795 Easements796 xiv

Contents



Castle Constructions Pty Ltd v Sahab Holdings Pty Ltd797 Commentary801 McGrath v Campbell802 Commentary809 Tenancies809 State Guarantee of Title 811 Bringing the land under the Act 812 Deprivation of an interest or estate from fraud 812 Diemasters v Meadowcorp812 Commentary816 Error or misdescription in the Register 818 Registration of another person 819 Registrar’s Power to Correct the Register 819 Revision Questions821

12 Electronic Conveyancing

822

What is Electronic Conveyancing? 822 Regulatory Framework 825 Key Concepts 826 Acronyms826 The documentary framework for PEXA 827 Client authorisation 828 Verification of identity 829 Digital signature 829 Security834 ECNL Fraud and the Torrens System 836 Electronic Certificate of Title 838 Summary of eCT developments in New South Wales 840 Developments for eCT in other states 840 Electronic Conveyancing and the Torrens System 841 Concerns and Risks Associated with Electronic Conveyancing 842 Benefits of Electronic Conveyancing 842 Conclusion843 Revision Questions844

13 Unregistered Interests

845

Nature of Unregistered Interest 846 Barry v Heider846 Commentary850 Unregistered Interests and Electronic Conveyancing 851 Priority Notice 852 The Caveat System 854 The Nature of a Caveatable Interest 856 Boensch v Pascoe860 Commentary862 xv



Australian Property Law

Failure to Lodge a Caveat

862

Leros Pty Ltd v Terara Pty Ltd863

Commentary868 Caveat Must Relate to an Existing Interest 869 Priority Disputes Between Unregistered Interests 870 Merit analysis: assessing the better equity 870 Heid v Reliance Finance Corporation Pty Ltd871 Commentary880 Different forms of priority disputes 882 Black v Garnock883 Commentary887 J and H Just (Holdings) v Bank of New South Wales888 Commentary891 IAC (Finance) Pty Ltd v Courtenay894 Commentary900 Revision Questions901 Jacobs v Platt Nominees902 Commentary909 The Relevance of Notice 911 Moffett v Dillon912 Commentary926 Revision Questions927

14 Easements

928

Nature of an Easement 929 Easements and natural rights 930 Profits à prendre 930 Carbon rights 932 Rentcharge935 Essential Elements of an Easement 935 Dominant and servient tenement 935 The easement must accommodate the dominant tenement 936 Dominant and servient owners must be different 939 The easement must be capable of forming the subject matter of a grant 940 Re Ellenborough Park940 Riley v Penttila948 Commentary952 Ancillary rights 955 Different Forms of Easement 956 New easement rights 956 Grants and reservations 957 Express easements and statutory powers 958 Implied easements of necessity and common intention 958 Easements of necessity 959 Adealon International Proprietary Ltd v London Borough of Merton959 Commentary968 North Sydney Printing Pty Ltd v Sabemo Investment Corp Pty Ltd968 xvi

Contents



Commentary972 Common intention easements 975 Continuous and apparent easements 975 McGrath v Campbell977 Commentary988 Easements arising from construction 989 Dabbs v Seaman989 Commentary994 Easements arising under the non-derogation principle 995 Wheeldon v Burrows995 Commentary997 Revision Questions998 Easements by Prescription 999 Hampshire Automotive Centre Pty Ltd v Centre Com (Sunshine) Pty Ltd1004 Commentary1012 Construction of Easements 1013 Westfield Management Ltd v Perpetual Trustee Ltd1013 Commentary1020 Extinguishment and Modification of Easements 1021 Abandonment1023 Treweeke v 36 Wolseley Road Pty Ltd1024 Commentary1028 Bookville Pty Ltd v O’Loghlen1030 Commentary1036 Extinguishment on the basis of a change in circumstances 1036 Unity of ownership 1038 Revision Questions1038 Answer Plan1039

15 Restrictive Covenants

1041

Contractual Nature of the Covenant 1042 The Utility of Covenants 1044 Privity of Contract and the Enforcement of Covenants 1045 Revision Questions1047 Rule against Passing the Burden of a Covenant Under Common Law1047 Austerberry v Corporation of Oldham1047 Commentary1049 Benefit and Burden of a Covenant 1050 Thamesmead Town Ltd v Allotey1050 Commentary1056 Annexation of Rentcharge 1056 Revision Questions1057 Passing the Benefit Under Common Law: The ‘Touch and Concern’ Test 1057 Congleton v Pattison1058 xvii



Australian Property Law

Commentary1059

Revision Questions1061

Passing the Burden in Equity: Enforcing a Restrictive Covenant 1061 Tulk v Moxhay1062 Commentary1063 Forestview Nominees v Perpetual Trustees WA1064 Commentary1071 Restrictive rather than positive 1071 Intention to impose the burden upon a knowing successor in title 1072 Covenant identifies benefited land 1074 Revision Questions1077 Passing the Benefit of a Covenant in Equity 1077 Midland Brick Company Pty Ltd v Welsh1079 Commentary1090 Revision Questions1091 Assignment of Covenants 1091 Assigning the Benefit of a Covenant in Equity 1092 Re Union of London and Smith’s Bank Ltd’s Conveyance1093 Commentary1098 Revision Questions1101 Building Schemes 1101 Basic requirements for building schemes 1102 Elliston v Reacher1102 Commentary1105 Mutuality1106 Small v Oliver & Saunders (Developments) Ltd1106 Commentary1111 Building schemes and the Torrens system 1112 Re Dennerstein1112 Commentary1118 Deguisa v Lynn1119 Commentary1125 Revision Questions1125 Extinguishment and Modification of Covenants 1126 Stanhill Pty Ltd v Jackson1129 Commentary1137 Revision Questions1139 Answer Plan1140

16 Mortgages

1141

What is a Mortgage? 1142 The Equity of Redemption 1143 Campbell v Holyland1145 Commentary1148 Revision Questions1151 Clogs on the equity of redemption 1151 xviii

Contents

Relevance of Unconscionability



1153

Lift Capital Partners Pty Ltd v Merrill Lynch International1154

Commentary1162

Revision Questions1164

Formality Requirements and Intention

1164

Revision Questions1167

Types of Mortgages Old title mortgage Torrens title mortgage

1167 1167 1168 Figgins Holdings v SEAA Enterprises Pty Ltd1171 Commentary1176 Mortgages and Electronic Conveyancing 1178 Revision Questions1181 Equitable mortgages 1181 Formal mortgage over equitable title 1182 Formal mortgage over legal title improperly executed 1182 Collateral security 1182 Specifically enforceable agreement to mortgage 1183 Theodore v Mistford Pty Ltd1183 Commentary1190 Mortgage by deposit of title deeds (mortgagor and third party) 1191 Re Wallis and Simmonds (Builders) Ltd1193 Commentary1198 CNG Co (Aust) Pty Ltd v Australia & New Zealand Banking Group1199 Commentary1201 Consumer Credit Legislation 1201 Revision Questions1202 Rights and Duties Under a Mortgage 1202 Right to sue for loan moneys 1202 Right to possession 1203 Right to assign a mortgage debt 1204 Revision Questions1206 Power of Sale 1206 Notice requirements 1208 Good faith requirements of the mortgagor 1209 Upton v Tasmanian Perpetual Trustees Ltd1215 Commentary1225 Revision Questions1226 Improper sale and third party purchasers 1227 Forsyth v Blundell1227 Commentary1232 Foreclosure and Receivership 1233 Revision Questions1236

17 Co-Ownership What is Co-ownership?

1237 1239 xix



Australian Property Law

Joint tenancy 1239 Unity of possession 1241 Unity of interest 1241 Unity of title 1242 Unity of time 1242 The right of survivorship 1243 The forfeiture rule 1244 Revision Questions1246 Tenancy in common 1247 Creation Requirements 1248 Creation under common law 1248 Robertson v Fraser1249 Commentary1251 Common law presumption of a joint tenancy 1251 Public Trustee v Pfeiffle1252 Commentary1259 Revision Questions1260 Statutory presumption of a joint tenancy 1261 Aoun Investments Pty Ltd v Chief Commissioner of State Revenue1263

Commentary1267

Revision Questions1268

Creation in equity 1268 Unequal contribution to purchase price 1269 Delehunt v Carmody1270 Commentary1274 Mortgagees1275 Business partners 1276 Other circumstances where beneficial entitlement intended 1276 Malayan Credit Ltd v Jack Chia-MPH Ltd1276 Commentary1281 Stack v Dowden1282 Commentary1295 Revision Questions1298 Approaches to Assessing Co-owner Presumptions 1298 Rights and duties of co-owners 1298 Right to occupy/occupation rent 1299 Wrongful exclusion 1300 Biviano v Natoli1301 Commentary1306 Revision Questions1307 Agreement to pay occupation rent 1307 Occupation rent and claim for improvements 1308 Rents received by occupying co-owner 1308 Forgeard v Shanahan1308

xx

Contents



Commentary1320 Expenditure on improvements and repairs 1321 Revision Questions1324 Right to encumber/alienate interest of a co-owner 1324 Hedley v Roberts1325 Commentary1331 Trespass and waste 1331 Severance of a Joint Tenancy 1331 What is severance? 1331 Severance by alienation 1334 Wright v Gibbons1334 Commentary1342 Revision Questions1343 Alienation at law and alienation in equity 1343 Corin v Patton1345 Commentary1362 Revision Questions1364 Severance by lease 1364 Revision Questions1366 Severance by mortgage 1366 Lyons v Lyons1367 Commentary1376 Severance by agreement 1377 Hulme v Schaecken1378 Commentary1380 Peldan v Anderson1381 Commentary1390 Revision Questions1391 Criminal Culpability and the Joint Tenancy 1391 Revision Questions1394 Partition and Sale 1394 Legislative provisions 1394 Commentary1399 Revision Questions1401 Exam Plan1402

Index

1405

xxi



Preface The fifth edition of Australian Property Law: Cases, Materials and Analysis was written during the global pandemic and Melbourne lockdown. In many ways, writing this new edition kept me sane during a very challenging period. And as we have all bunkered down in our homes, working, schooling and living under the one roof, the importance of property and its fundamental connection to our way of life has never been stronger. As a relational concept, property brings with it a range of legally enforceable entitlements that makes it one of the most powerful obligations recognised by law. As a social concept, however, property is fundamental to our identity, our community, our health and our family. Property represents our domain; it a place of refuge and safety. And during a global pandemic, it is where we have carried out many of the activities that fill our lives. Of course, property is not just about the home that we may live in but how, why and where we live. And neither is property concerned purely with our dwelling. It encompasses our natural resources, our shared living arrangements, any restrictions that impede what we can do to our domain, the process of acquiring our domain, and the rights and principles that inform that process. In short, property frames the many dimensions of our modern lives. The aim of this fifth edition, is to outline the different principles relevant to the legal articulation of property. This includes not only an appreciation of the historical principles that inform the Australian land framework, but a deeper analysis of the structural foundations of Australian property law, including Indigenous rights and interests, obligations and entitlements to interconnected natural resources, co-ownership principles, securities and encumbrances, easements, trust entitlements, leases, estates and the core tenets of the registration framework and digital conveyancing. In short, Australian Property Law comprehensively reviews the legal principles that inform ownership, possession and control of land interests in Australia. The fifth edition continues the structure of the previous editions in that it includes extracts from seminal cases, commentary and discussion on these extracts that explain the importance of the decision and its bearing on the general principles that have evolved. The book includes examples, revision questions and answer guides. All of the commentaries and case extracts have been significantly revised to include the most up-to-date references to cases and legal principles. New cases and legislative developments have occurred in a range of areas, and in Australian Property Law these include ownership of body parts, fixtures, equitable interests and the doctrine of part performance; digital conveyancing; compensation for the extinguishment of native title; honest and reasonable lodgement of caveats; and questions about whether a building scheme is obliged to be on the title. Specifically, extracts and commentary in the fifth edition include: • Detailed updates and commentary in the chapter on digital conveyancing, including an analysis of the decision in Astell v  ACT [2016] ACTSC 238, which examines the availability of statutory damages for fraud committed through an electronic conveyance, as well as the inclusion of a new discussion in Chapter 13 on priority notices. • An extract and detailed discussion of the High Court decision in Pipikos v Trayans (2018) 359 ALR 210, which examines the history and application of the doctrine of xxiii



Australian Property Law

part performance, distinguishes it from estoppel and confirms the relevant test for its application. • An extract and detailed discussion of the High Court decision in Boensch v Pascoe (2019) 375 ALR 15, which examines when a caveator is to be regarded as having acted honestly and reasonably when lodging a caveat. • An extract and detailed discussion of the High Court decision in Northern Territory v Griffith (2019) 368 ALR 77, which examines the different approaches to assessing compensation for the extinguishment of native title rights and interests from economic and spiritual and cultural perspectives. • An extract and detailed commentary on the decision of the Full Supreme Court of South Australia in Deguisa v  Lynn [2020] HCA 39, which considers whether the purchaser of Torrens title land is obliged to search other titles for evidence of the land being the subject of a building scheme. I am grateful as ever for permission to publish copyright materials within the book. Many thanks to the dedicated effort of the editorial team at Lexis Nexis Butterworths, particularly the wonderful support, focus and patience of Jocelyn Holmes and Edward Caruso. And many thanks to my family. It has been a long and difficult year. I appreciate and love you all very much. Professor Samantha Hepburn Princes Hill October 2020

xxiv

Cases References are to paragraph numbers Cases extracted at length are in bold 196 Hawthorn Road Pty Ltd v Duszniak [2020] VSC 235 .... 14.38 A

A E Brighton Holdings Pty Ltd v UDP Holdings Pty Ltd [2019] VSC 688 .... 13.7 A & K Holdings Pty Ltd, Re [1964] VR 257 .... 10.3 Abbey National Building Society v Cann [1991] 1 AC 56 .... 10.18 Abbeyfield (Harpenden) Society Ltd v Woods [1968] 1 All ER 352; [1968] 1 WLR 374 .... 7.6 Abbott, Re [1893] 1 Ch 54 .... 6.16 Abela v Public Trustee [1983] 1 NSWLR 308 .... 17.64 Abigail v Lapin (1934) 51 CLR 58; [1934] AC 491 .... 10.25, 11.13, 11.32, 13.14, 13.15, 13.19, 13.21, 13.24, 13.27, 16.31, 16.46 ABN Amro Clearing Sydney Pty Ltd (formerly Fortis Clearing Sydney Pty Ltd) v Primebrokers Securities Ltd (recs & mgrs apptd) (in liq) (2012) 39 VR 208; [2012] VSCA 287 .... 16.11, 16.47 Ackroyd v Smith (1850) 10 CB 164; 138 ER 68 .... 14.8 Adam v Shewsbury [2005] EWCA Civ 1006 .... 14.24 Adamson v Hayes (1973) 130 CLR 276 .... 15.26 Addiscombe Garden Estates Ltd v Crabbe [1958] 1 QB 513; [1957] 3 All ER 563 .... 7.6 Addison v Billion [1983] 1 NSWLR 586 .... 16.4 Adealon International Proprietary Ltd v London Borough of Merton [2007] All ER 225 .... 14.20, 14.21, 14.23 Adelaide Pistol Club Inc v District Council of Munno Para and Another (1981) 45 LGERA 119 .... 5.16

Afton Band of Indians v Attorney General Nova Scotia (1978) 85 DLR (3rd) 454 .... 2.12 AGC v De Jager [1984] VR 483 .... 11.23, 11.24 AG (CQ) Pty Ltd v A & T Promotions Pty Ltd [2010] Qd ConvR 54-732 .... 13.15 Agra Bank Ltd v Barry (1874) LR 7 HL 135 .... 10.12, 11.32 Agripower Barraba Pty Ltd v Blomfield [2013] NSWSC 1598 .... 3.2 — v Blomfield [2015] NSWCA 30 .... 3.1, 3.5, 3.8, 3.14, 3.16 Ahluwalia v Robinson [2003] NSWCA 175 .... 7.23 Air Jamaica Ltd v Charlton [1999] 1 WLR 1399 .... 9.17 Akiba v State of Queensland (No 3) (2010) 204 FCR 1; 270 ALR 564 .... 5.8, 8.15, 8.30 — v The Commonwealth (2013) 250 CLR 209; (2013) 300 ALR 1 .... 5.8, 8.9, 8.29, 8.31, 8.32, 8.47 Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (2009) 239 CLR 27; 260 ALR 1; 83 ALJR 1152; [2009] HCA 41…. 3.14, 7.1, 11.6 Alcova Holdings Pty Ltd v Pandarlo Pty Ltd (1988) 15 NSWLR 53 .... 11.16 Aldridge v Wright [1929] 2 KB 117 .... 14.26 Aldrington Garages Ltd v Fielder (1978) 37 P & CR 461 .... 7.6 Alexandra, Re [1980] VR 55 .... 14.47, 15.48 Alghussein Establishment v Eton College [1988] 1 WLR 587 .... 10.28 Allan v Liverpool Overseers (1874) LR 9 QB 180 .... 7.6, 7.8 Allcock v Moorhouse [1882] 9 QBD 366 .... 7.31 Allen v Kent (1957) 136 A 2d 540 .... 9.26 — v Knight [1850] 5 Hare 272 .... 10.23 — v Rivington (1670) 2 Wms Saund 111; 85 ER 813 .... 2.11 — v Roughley (1955) 94 CLR 98 .... 2.10, 2.11, 4.19 xxv



Australian Property Law

— v Snyder [1977] 2 NSWLR 685 .... 9.26, 9.28, 17.56 Allen Taylor & Company Pty Ltd trading as Boral Timber v Norman Leslie Harrison [2010] NSWSC 1021 .... 17.49 Allens Asphalt Pty Ltd v SPM Group Pty Ltd [2010] 1 Qd R 202 .... 13.11 Allfox Building Pty Ltd v Bank of Melbourne (1992) NSW Conv R 55,625 .... 16.47 Alliance Engineering Pty Ltd v Yarraburn Nominees [2011] NSWCA 301 .... 14.40 Almona Pty Ltd v Parklea Corporation Pty Ltd [2019] NSWSC 1868 .... 10.28, 16.4, 16.43 Alonso v SRS Investments (WA) Pty Ltd [2012] WASC 168 .... 7.14 Amcor Ltd v Barnes [2016] VSC 707 .... 16.9 Americana Leadership College v Coll [2005] NSWCA 15 .... 9.31 Amit Laundry Pty Ltd v Jain [2017] NSWSC 1495 .... 9.21 Amodu Tijani v Secretary Southern Nigeria [1921] 2 AC 399 .... 5.8, 5.9 Anchor Brewhouse Developments Ltd v Berkley House (Docklands Development) Ltd (1987) 284 EG 625 .... 3.30 Anderson v Anderson (2016) 18 BPR 36,253; [2016] NSWSC 1204 .... 11.28, 17.68 — v Bowles (1951) 84 CLR 310 .... 7.11 Anderson Group Pty Ltd v Tynan Motors Pty Ltd (2006) 65 NSWLR 400; [2006] NSWCA 22 .... 2.17, 2.18 Andrew v Partington (1791) 3 Bro CC 401; 29 ER 610; [1775–1802] All ER Rep 209 .... 6.11, 6.19 Andrews v South Australian Superannuation Fund Investment Trust (1985) 124 LSJS 153 .... 13.10 — v Wilcox [2008] NSWSC 280 .... 17.49 Andriopoulos v Marshall (1981) 2 BPR 9391 .... 14.39 Angus’ Will Trusts, Re [1960] 1 WLR 1296 .... 17.15 Anna Slattery et al v Neil B Adams et al (1954) 279 SW (2d) 445 .... 4.10 xxvi

Anning v Anning (1907) 4 CLR 1049 .... 15.30, 17.56, 17.57 Anson v Anson [2004] NSWSC 766 .... 9.27 Anthony v Commonwealth (1973) 47 ALJR 83 .... 3.14 Aoun Investments Pty Ltd v Chief Commissioner of State Revenue [2006] NSWSC 1394 .... 17.19, 17.20, 17.21 Application by Robinson, Re [2015] NSWSC 1387 .... 5.15 Apriaden Pty Ltd v Seacrest Pty Ltd [2005] 12 VR 319 .... 7.37, 7.41 Arab Bank of Australia v Jeitani [2016] NSWSC 617 .... 16.43 Arambasic v Veza (No 4) [2014] NSWSC 119 .... 11.45 Arcade Hotel Pty Ltd, Re [1962] VR 274 .... 15.23, 15.42 Arcadi v Whittem (1992) 59 SASR 515 .... 11.60 Arfaras v Vosnakis [2016] NSWCA 65 .... 7.16 Arkbay Investments Pty Ltd v Tripod Funds Management Pty Ltd [2014] NSWSC 1003 .... 13.7 Armory v Delamirie [1558–1774] All ER Rep 121; (1722) 1 Strange 505; 93 ER 664 .... 2.14, 2.16, 2.17 Asher v Whitlock (1865) LR 1 QB 1 .... 2.3, 2.8, 2.9, 2.10, 2.11, 2.12, 2.13, 2.17, 2.19, 4.2 Ashpitel v Bryan (1864) 5 B & S 723 .... 14.29 Ashworth Frazer Ltd v Gloucester City Council [2001] 1 WLR 218 .... 7.31 Assaf v Fuwa [1955] AC 215 .... 10.20 Assam Railways & Trading Co Ltd v Commissioners of Inland Revenue [1935] AC 445; [1934] All ER Rep 646 .... 3.14 Assets Co Ltd v Mere Roihi [1905] AC 176 .... 11.11, 11.13, 11.18, 11.21, 11.23, 11.24, 11.27, 14.29 Associated Alloys Pty Ltd v ACN 001 452 106 Pty Ltd (2000) 202 CLR 588 .... 9.7 Astell v ACT [2016] ACTSC 238 .... 12.18 Atia v Nusbaum [2011] QSC 44 .... 16.11

Cases Attorney-General v Antrobus [1905] 2 Ch 188 .... 14.10, 14.11 — v Brown (1847) 1 Legge 312 .... 2.11 — v — (1847) 2 Legge 312 .... 5.6 — v Chambers (1854) 4 De GM & G 206; 43 ER 486 .... 3.19 — v — (1859) 4 De G & J 55; 45 ER 22 .... 3.22 — v Cummins (1906) 1 IR 406n .... 6.12 — v Horner [1913] 2 Ch 140 .... 14.8 — v Love (1898) AC 679 .... 14.35 — v Pyle (1738) 1 Atk 435 .... 6.12 Attorney-General for British Columbia v Attorney-General for Canada [1914] AC 153 .... 3.19 Attorney-General for NSW v Brewery Employees Union of NSW (1908) 6 CLR 469 .... 17.19 Attorney-General for Quebec v AttorneyGeneral for Canada [1921] 1 AC 401 .... 5.8, 8.8 Attorney-General of Belize v Belize Telecom Ltd [2009] 2 All ER (Comm) 1 .... 7.27 Attorney-General of Commonwealth v R T Co Pty Ltd (No 2) (1957) 97 CLR 146; [1957] HCA 29 .... 3.14 Attorney-General of Southern Nigeria v John Holt and Co (Liverpool) Ltd [1915] AC 599; [1914-15] All ER Rep 444 .... 14.12 Attwater v Attwater (1853) 52 ER 131 .... 6.3 Atwood v Maude (1868) LR 3 Ch App 369 .... 9.26, 9.28 Augusta Pty Ltd v Provident Capital Ltd [2012] NSWCA 26 .... 13.18 Augustine v State of Western Australia [2013] FCA 338 .... 8.17 Aussie Traveller Pty Ltd v Marklea Pty Ltd [1998] 1 QdR 1 .... 7.24 Austerberry v Corporation of Oldham (1885) 29 Ch D 750 .... 15.2, 15.7, 15.8, 15.9, 15.12 Austin v Amhurst (1877) 7 Ch D 689 .... 14.36 Austin v Wright [1926] WALawRp 23; (1926) 29 WALR 55 .... 14.35



Australia and New Zealand Banking Group Ltd, Re [1993] 2 Qd R 477 .... 16.4, 16.18 Australia and New Zealand Banking Group Ltd v Bangadilly Pastoral Co Pty Ltd (1978) 139 CLR 195 .... 16.42, 16.43 — v Pola [2013] NSWSC 1801 .... 16.41 — v Widin (1990) 26 FCR 21; 102 ALR 289 .... 9.14, 16.27 Australia Capital Financial Management Pty Ltd v Linfield Developments Pty Ltd; Guan v Linfield Developments Pty Ltd (2017) 18 BPR 36,683 .... 10.24, 13.13, 13.15 Australian Broadcasting Corporation v Lenah Game Meats Pty Ltd [2001] HCA 63; (2001) 208 CLR 199 .... 16.8 Australian Building and Technical Solutions Pty Ltd v Boumelhem [2009] NSWSC 460 .... 9.17 Australian Competition and Consumer Commission v CG Berbatis Holdings Pty Ltd (No 2) (2000) 96 FCR 491; [2000] FCA 2 .... 16.8 Australian Conservation Foundation v The Commonwealth (1980) 146 CLR 493 .... 8.6 Australian Elizabethan Theatre Trust, Re (1991) 30 FCR 491; 102 ALR 681 .... 9.19 Australian Federation of Construction Contractors, Re; Ex parte Billing (1987) 61 ALJR 39; [1986] HCA 74 .... 3.14 Australian Hi-Fi Publications Pty Ltd v Gehl [1979] 2 NSWLR 618 .... 11.67, 14.26 Australian Provincial Assurance Co Ltd v Coroneo (1938) 38 SR (NSW) 700 .... 3.2, 3.14 Australian Regional Credit v Mula [2009] NSWSC 325 .... 11.16 Australian Securities and Investments Commission v Cassimatis (No 8) [2016] FCA 1023 .... 11.28 Australian Securities and Investments Commission, Re; GDK Financial Solutions Pty Ltd (2008) 246 ALR 580 .... 16.4 Australian Securities Commission v Marlborough Gold Mines Ltd (1993) 177 CLR 485; 112 ALR 627…. 9.30 xxvii



Australian Property Law

Australian Softwood Forests Pty Ltd v Attorney-General (NSW); Ex Rel Corporate Affairs Commission (1981) 148 CLR 121 .... 14.3 Avco Financial Services Ltd v Fishman [1993] 1 VR 90 .... 10.25, 13.20, 13.25 — v White [1977] VR 561 .... 9.7, 13.27 Aveling v Knipe (1815) 19 Ves Jun 441; 34 ER 580 .... 17.24 Avondale Printers & Stationers Ltd v Haggie (1979) 2 NZLR 124 .... 9.26 Awadallah v Hymix Australia Pty Ltd [2015] NSWSC 117 .... 17.49 B

B v B [1978] Fam 26 .... 17.36 Baden Delvaux v Société Generale [1993] 1 WLR 509 .... 11.33 Bahr v Nicolay (No 2) (1988) 164 CLR 604; [1988] HCA 16 .... 11.7, 11.18, 11.21, 11.22, 11.23, 11.30, 11.32, 11.34, 11.36, 11.38, 11.41, 11.52, 11.56, 11.57, 13.3, 13.10, 14.26, 15.43 Bailey v Barnes [1894] 1 Ch 25 .... 9.40, 10.18 Baillie, Re; Faithful v Sydney Industrial Blind Institution (1907) 7 SR (NSW) 265 .... 6.11 Bainbrigge v Browne [1881] 18 Ch D 188 .... 9.40 Baker v Biddle (1923) 33 CLR 188; [1923] HCA 26 .... 16.8 Balgra Office Enterprises Pty Ltd v Commissioner of State Taxation [2008] SASC 50 .... 7.1 Ballard’s Conveyance, Re [1937] Ch 473 .... 15.25 Ballas v Theopilos (No 1) (1957) 97 CLR 186 .... 17.62 Ball-Guymer v Livantes (1990) 102 FLR 327 .... 3.14 Bamford v Turnley (1863) 3 B & S 79 .... 1.27 Banjima People v State of Western Australia (No 2) [2013] FCA 868 .... 8.17, 14.23 Bank of Credit and Commerce International SA (No 8), Re [1998] AC 214 .... 9.7 Bank of New South Wales v O’Connor (1889) 14 App Cas 273 .... 16.28 xxviii

Bank of New Zealand v Development Finance Corp of New Zealand [1988] 1 NZLR 495 .... 10.20 Bank of Queensland Ltd v Dodrill [2011] QCA 130 .... 13.18 Bank of South Australia Ltd v Ferguson (1998) 192 CLR 248 .... 11.23, 11.25, 11.26 Bank of Victoria v Forbes (1887) XIII VLR 760 .... 4.9 Bankstown Trotting Recreational Club Ltd v Chisholm [2016] NSWCA 274 .... 7.24 Bannister v Bannister (1948) 2 All ER 133 .... 11.21, 11.41 Baramon Sales Pty Ltd v Goodman Fielder Mills Ltd [2001] FCA 1672 .... 15.18, 15.26, 15.43 Barba v Gas & Fuel Corporation of Victoria (1976) 136 CLR 120 .... 14.36 Barclays Bank Ltd v Quistclose Investments Ltd [1970] AC 567 .... 9.19, 9.20 Barclays Bank plc v Estates & Commercial Ltd [1997] 1 WLR 415 .... 9.24 — v O’Brien [1994] 1 AC 180 .... 10.18, 11.32, 13.27 Barecall Pty Ltd v Hoban [2009] NSWSC 1104 .... 7.14 Barker v Linklater [2008] 1 Qd R 405 .... 9.27 Barlin Investments Pty Ltd v Westpac Banking Corp (2012) 16 BPR 30,671; [2012] NSWSC 699 .... 10.24, 13.20 Barnes v Addy (1874) LR 9 Ch App 244 .... 11.29, 11.33, 11.34, 11.36, 11.38 Barnhart v Greenshields [1853] EngR 1060; (1853) 9 Moo PCC 18; 14 ER 204 .... 10.18 Barns v Queensland National Bank Ltd (1906) 3 CLR 925; [1906] HCA 26 .... 9.40, 16.41, 16.42 Barrett- Lennard v River Wind Pty Ltd [2019] WASCA 199 .... 14.40 Barrowcliff, Re [1927] SASR 147 .... 17.8 Barry v Hasseldine [1952] Ch 835; [1952] 2 All ER 317; [1952] 2 TLR 92 .... 14.20, 14.22

Cases — v Heider (1914) 19 CLR 197; 21 ALR 93 .... 10.13, 10.18, 11.4, 11.13, 11.21, 11.30, 11.34, 13.2, 13.3, 13.14, 13.21, 14.29, 14.30, 16.14, 17.56 — v Hesseldine [1952] Ch 835 .... 14.20 Bartlett v Ryan [2000] NSWSC 807 .... 4.10 Bass v Gregory (1890) 25 QBD 481 .... 14.15 Batey v Potts [2004] NSWSC 606 .... 17.70 Baumgartner v Baumgartner (1987) 164 CLR 137 .... 9.27, 9.28, 9.29, 9.30, 17.42 Baxter v Four Oaks Properties Ltd [1965] Ch 816 .... 15.38 Bayport Industries Pty Ltd v Watson (2006) V ConvR 54-709; [2002] VSC 206 .... 4.1, 4.13, 4.16, 4.17, 4.20 Bazley v Wesley Monash IVF Pty Ltd [2011] 2 Qd R 207; [2010] QSC 118 .... 2.5 Beach Petroleum NL v Abbott Tout Russell Kennedy (1999) 48 NSWLR 1 .... 10.18 — v Johnson (1993) 43 FCR 1; 115 ALR 411 .... 10.18 Beames v Leader [1998] QCA 368; [2000] 1 Qd R 347 .... 11.56 Beca Developments Pty Ltd v Idameneo (No 92) Pty Ltd (1990) 21 NSWLR 459 .... 13.7, 13.8 Beconwood Securities Pty Ltd v Australia and New Zealand Banking Group Ltd (2008) 246 ALR 361 .... 16.4, 16.11 Bedford, Duke of v Trustees of British Museum (1822) 2 My & K 552; 39 ER 1055 .... 15.17 Bedford Properties Pty Ltd v Surgo Pty Ltd [1981] 1 NSWLR 106 .... 13.7 Bedson v Bedson [1965] 2 QB 666; [1965] 3 All ER 307 .... 17.30 Beever v Spaceline Engineering Pty Ltd (1993) 6 BPR 13,270 .... 4.10 Belgrave Nominees Pty Ltd v Barlin-Scott Airconditioning (Aust) Pty Ltd [1984] VR 947 .... 3.2 Bell v Scott (1922) 30 CLR 387 .... 3.28 Bellevue Crescent Pty Ltd v Marland Holdings Pty Ltd (1998) 43 NSWLR 364 .... 14.30



Bellville, Re [1941] 1 Ch 414 .... 6.20 Belmont Park Investments Pty Ltd v BNY Corporate Trustee Services Ltd [2012] 1 AC 383 .... 5.16 Beman Pty Ltd v Boroondara City Council [2017] VSC 207 .... 15.27 Bendal Pty Ltd v Mirvac Projects Pty Ltd (1991) 23 NSWLR 464 .... 3.30 Bendall v McWhirter (1952) 2 QB 466 .... 13.10 Benger v Quartermain (1934) NZLR s 13 .... 3.2 Bennell v State of Western Australia [2006] FCA 1243 .... 8.15, 8.18 Bennett v Minister for Public Works (NSW) (1908) 7 CLR 372 .... 11.52 Ben-Pelech v Royal [2019] WASC 297 .... 4.23 Beresford v Booth [1999] SASC 166. .... 17.37 Berkley v Poulett (1977) 241 EG 911 .... 3.16 Bernard v Josephs [1982] 3 All ER 162 .... 17.30 Berrisford v Mexfield Housing Co-Operative Ltd (2012) 1 AC 955 .... 1.13 Berryman v Sonnenschein [2008] NSWSC 213 .... 14.14 Bertei v Feher [2000] WASCA 165 .... 9.21 Beswick v Beswick [1968] AC 58 .... 15.3, 15.26 Betts v Receiver of Metropolitan Police District and Carter Paterson & Co Ltd [1932] 2 KB 595 .... 2.17 Bevham Investments Pty Ltd v Belgot Pty Ltd (1982) 149 CLR 494; [1982] HCA 45 .... 16.8 Bickel v Duke of Westminster [1977] QB 517 .... 7.31 Bickersteth v Shanu [1936] AC 290 .... 5.15 Bickerton v Walker [1885] 31 Ch D 151 .... 9.40 Big Top Hereford Pty Ltd v Gavin Thomas as Trustee of the Bankrupt Estate of Douglas Keith Tyler [2006] NSWSC 1159 .... 2.14 Biggs v McEllister (1880) 14 SALR 86 .... 11.40, 11.42 xxix



Australian Property Law

Billing v Pill [1954] 1 QB 70 .... 3.2 Bird v Fort Frances [1949] 2 DLR 791 .... 2.17 Birmingham, Dudley and District Banking Co v Ross [1888] 38 Ch D 295 .... 14.33 Bishop v Elliott (1855) 11 Ex 113; 156 ER 766 .... 3.8 — v Taylor (1968) 118 CLR 518 .... 7.2 Bitumen and Oil Refineries (Aust) Ltd v Commissioner for Government Transport (1955) 92 CLR 200; [1955] HCA 1 .... 3.14 Biviano v Natoli (1998) 43 NSWLR 695 .... 17.36, 17.37, 17.38, 17.49 Black v Garnock (2007) 230 CLR 438; 237 ALR 1; [2007] HCA 31 .... 11.7, 11.14, 13.11, 13.16, 13.17, 13.18, 14.39 Black Uhlans Inc v New South Wales Crime Commission [2002] NSWSC 1060 .... 17.29 Blacks Ltd v Rix [1962] SASR 161 .... 15.22, 15.26, 15.43 Blackwell, Re [1926] 1 Ch 223 .... 5.15 Blackwood v London Chartered Bank of Australia (1871) 10 (SCR) NSW Eq 20 .... 10.18 Bli Bli No 1 Pty Ltd v Kimlin Investments Pty Ltd [2008] QSC 289 .... 11.29, 11.37 Bligh v Martin [1968] 1 WLR 804 .... 4.1, 4.13, 4.16 Bluebottle UK Ltd v Deputy Commissioner of Taxation (2007) 232 CLR 598 .... 6.3 Blundell v Catteral (1821) 5 B & Ald 268; 106 ER 1190 .... 3.19 Blunt v Blunt [1943] AC 517 .... 7.31 Blunt’s Trusts, Re; Wigan v Clinch [1904] 2 Ch 767 .... 6.12 Bodney v Bennell (2008) 167 FCR 84 .... 8.15, 8.16, 8.8 Boensch v Pascoe (2019) 375 ALR 15 .... 13.7, 13.8, 13.11, 13.18, 13.23 Bogdanovic v Koteff (1988) 12 NSWLR 472 .... 11.41, 11.42, 11.43, 11.44, 11.45, 11.47, 11.48 Boh Ltd v Eastern Power Networks Pty Ltd [2011] EWCA Civ 19 .... 7.40 Bolt & Nut Co (Tipton) Ltd v Rowlands Nicholls & Co Ltd [1964] 2 QB 10 .... 13.27 xxx

Bolton v Bolton (1879) 11 Ch D 968; 43 JP 764; 48 LJ Ch 467 .... 14.14 — v Clutterbuck [1955] SASR 253 .... 14.19, 14.22 Bolton, Re; Ex parte Beane (1987) 162 CLR 514; [1987] HCA 12 .... 3.14 Bolton on behalf of the Southern Noongar Families v State of Western Australia [2004] FCA 760 .... 8.46 Bondi Beach Astra Retirement Village Pty Ltd v Gora (2011) 82 NSWLR 665; [2011] NSWCA 396 .... 6.3, 6.7 Booker v Palmer [1942] All ER 674 .... 7.6, 7.7, 7.8 Bookville Pty Ltd v O’Loghlen [2007] V ConvR 54-734 .... 14.45, 14.46 Boss v Hamilton Island Enterprises Ltd [2010] 2 Qd R 115 .... 7.31 Boswell v Crucible Steel Co [1925] 1 KB 119 .... 3.2 Boulter v Boulter (1898) 19 LR (NSW) Eq 135 .... 17.42, 17.44 Bowen, Re; Lloyd Phillips v Davis [1893] 2 Ch 491 .... 6.12 Bowman v Taylor (1834) 2 Ad & El 278 .... 14.29 — v Tremaine [2016] WASC 294 .... 4.13 Boyce v Beckman (1890) 11 LR (NSW) (L) 139 .... 11.1 Boyd v Mayor of Wellington [1924] NZLR 1174 .... 11.52 — v Thorn (2017) 96 NSWLR 390 .... 11.28, 11.56 — v Wellington Corpn [1924] NZLR 1174 .... 11.11, 11.13 Boyer v Warbey [1953] 1 QB 234 .... 7.35 BP Refinery (Westernport) Pty Ltd v Shire of Hastings (1977) 180 CLR 266 .... 7.27 Brace v Duchess of Marlborough [1728] EngR 100; 34 ER 829 .... 10.20 Bradley v McBride (1886) 2 WN (NSW) 56 .... 14.29 Branwood Park Pastoral Co Pty Ltd v Willing & Sons Pty Ltd [1976] 2 NSWLR 149 .... 16.4



Cases BreakFast Investments Pty Ltd v Giannopoulos (No 5) [2011] NSWSC 1508 .... 11.37 Breskvar v Wall (1971) 126 CLR 376; [1971] HCA 70 .... 11.7, 11.13, 11.14, 11.16, 11.17, 11.21, 11.30, 11.32, 11.36, 11.41, 11.44, 11.45, 11.47, 11.52, 11.53, 11.54, 11.55, 11.56, 11.57, 13.10, 13.27, 14.26, 14.39, 14.45, 15.23, 15.43, 16.46 Breskvar v Wall in Leros Pty Ltd v Terara Pty Ltd (1991) 106 ALR 595 .... 11.14 Brickwood v Young (1905) 2 CLR 387 .... 17.40, 17.42, 17.44 Bride v Shire of Katanning [2013] WASCA 154 .... 4.15, 16.18, 16.36 — v The Registrar of Titles [2015] WASC 11 .... 13.7 Bridges v Bridges [2010] NSWSC 1287 .... 4.11 — v Hawkesworth (1851) 21 LJQB 75 .... 2.14 Bridgewater v Leahy [1998] HCA 66; (1998) 194 CLR 457 .... 16.8 Brigers v Orr (1932) 32 SR (NSW) 634 .... 16.46 Bright v Walker (1834) 1 Cr M & R 211 .... 14.35 Bristow v Cormican (1878) 3 App Cas 641 .... 2.11 British Actors’ Film Company v Glover [1918] 1 KB 299 .... 1.12 British American Cattle Co v Caribe Farm Industries Ltd [1998] UKPC 28; [1998] 1 WLR 1529 .... 11.56 British American Tobacco Ltd v Cowell (2002) 7 VR 524 .... 2.14 British Leyland Motor Corporation Ltd v Armstrong Patents Co Ltd [1986] AC 577 .... 14.26 British Waterways Board v Toor [2006] EWHC 1256 .... 4.15 Broadcast Australia v Minister Assisting Minister for Natural Resources (Lands) (2004) 204 ALR 46 .... 6.3 Brocklesby v Armitage & Guest [2002] 1 WLR 598 .... 4.22

Brogden v Metropolitan Railway Co .... 7.17 Bromley v Tryon [1952] AC 265 .... 14.5 Brown v Heffer (1967) 116 CLR 344 .... 9.35 Browne v Flower [1911] 1 Ch 219 .... 7.24, 14.25, 14.29 Brunker v Perpetual Trustee Co (Ltd) (1937) 57 CLR 555 .... 17.56 Brunner v Greenslade [1971] Ch 993 .... 15.19, 15.39, 15.43 Bruton v London Quadrant Housing [2000] 1 AC 406 .... 7.7, 7.10, 7.16 Bryant v Foot (1867) LR 2 QB 161 .... 14.35 Brydall v The Owners of Strata Plan 66794 (2009) 14 BPR 26,831 .... 14.14 Buckinghamshire County Council v Moran [1990] Ch 623 .... 4.4, 4.20 Buckley v Barber (1851) 6 Exch 164 at 179; 155 ER 498 .... 17.26 — v Gross (1863) 3 B & S 556 .... 2.17, 2.18 Buckton’s Settlement Trusts, Re [1964] Ch 497 .... 6.16 Buffrey v Buffrey [2006] NSWSC 1349 .... 9.17 Bull v Bull [1955] 1 All ER 253; [1955] 1 QB 234 .... 17.33, 17.36, 17.47 Bulstrode v Lambert (1953) 2 All ER 728 .... 14.43 Burgess v Rawnsley [1975] Ch 429 .... 17.15, 17.56, 17.64, 17.65 Burke Estate v Nova Scotia (Attorney General) (1991) 107 NSR (2d) 91 .... 4.10 — v Dawes (1938) 59 CLR 1 .... 7.11, 10.20 — v State Bank of New South Wales (1995) 37 NSWLR 53 .... 11.32 — v Yurilla SA Pty Ltd (1991) 56 SASR 382 .... 15.11, 15.22, 15.23, 15.43 Burkinshaw v Nicolls (1878) 3 AC 1004 .... 14.29 Burns Philp Trustee Co Ltd v Viney [1981] 2 NSWLR 216 .... 9.2, 9.39, 10.27, 10.28 — v Burns [1984] Ch 317 .... 9.26 — v McCormick 135 NE 273 (NY 1922) .... 9.15 Burrows v Lang [1901] 2 Ch 502 .... 14.11 xxxi



Australian Property Law

Burrup Fertilizers Pty Ltd (Receivers and Managers Appointed) v Oswal (No 2) [2011] FCA 731 .... 11.37 Bursill Enterprises Pty Ltd v Berger Bros Trading Co Pty Ltd (1971) 124 CLR 73; [1971] ALR 551 .... 14.39, 15.23, 15.43, 15.44 Burton v Winters [1993] 3 All ER 847 .... 3.30 Butcher v Lachlan Elder Realty Pty Ltd (2004) 218 CLR 592 .... 3.19 Butler v Attorney-General (Vic) (1961) 106 CLR 268; [1961] HCA 32 .... 11.52, 11.56 — v Dickson [2018] VCC 610 .... 4.9 — v Fairclough (1917) 23 CLR 78 .... 10.28, 11.21, 11.23, 11.34, 13.3, 13.19, 13.20, 13.21, 13.24 — v Hobson (1938) 4 Bing (NC) 290; 132 ER 800; [1838] EngR 401 .... 2.17 Buttle v Saunders [1950] 2 All ER 193 .... 17.73 Byrne v Australian Airlines Ltd (1995) 185 CLR 410 .... 7.27 Byrnes v Kendle (2011) 243 CLR 253 .... 13.3 C

C Convenience Stores Pty Ltd v Wayville Plaza Pty Ltd [2012] SASC 14 .... 15.18 Cable v Bryant [1908] 1 Ch 259 .... 14.15, 14.25, 14.29 Caboche v Ramsay (1993) 119 ALR 215 .... 5.18, 6.3 Cackett v Keswick [1902] 2 Ch 456 .... 16.8 Cadell v Palmer (1833) 1 Cl & Fin 372; 6 ER 956 .... 6.11 Cadia Holdings Pty Ltd v NSW (2010) 269 ALR 204 .... 3.26 Calder v Attorney-General (British Columbia) .... 8.8 Caldwell v Rural Bank of New South Wales (1951) 53 SR (NSW) 415 .... 11.56 Callow v Rupchev [2009] NSWCA 148 .... 17.43 Calverley v Green (1984) 155 CLR 242; 56 ALR 483; [1984] HCA 81…. 9.17, 9.21, 9.22, 9.23, 9.26, 9.28, 17.23, 17.24 xxxii

Cam v Linke Nominees [2010] FCA 1148 .... 11.14 Cameron Ltd v Rolls Royce Pty Ltd [2007] EWHC 546 .... 1.13 Campbell v Holyland (1878) 7 Ch D 166 .... 16.3, 16.4 — v Payne and Fitzgerald (1953) 53 SR (NSW) 537 .... 7.37 Campbell and Cowdy, Re [1928] 1 DLR 1034 .... 15.42 Canadian Pacific Ltd v Paul [1988] 2 SCR 654 .... 8.8 Cannon v Villars (1878) 8 Ch D 415 .... 14.39 Canon Kabushiki Kaisha v Green Cartridge Co (Hong Kong) Ltd [1997] AC 728 .... 14.26 Cantliff v Jenkins [1978] 1 All ER 836 .... 17.36 Cao v Baccello Pty Ltd as trustee for the Mondello Family Trust ]2020]WASCA 82 .... 7.2, 7.14 Capell v Winter [1907] 2 Ch 376 .... 13.14, 10.25 Capital and Counties Bank Ltd v Rhodes [1903] 1 Ch 631 .... 7.40 Capital Finance Australia Pty Ltd v Bayblu Holdings Pty Ltd & JNW Investments Pty Ltd [2011] NSWSC 24 .... 13.7 Carey v Doyne (1856) 5 Ir Ch Rep 104 .... 16.35 Carindaels-Hooper v Tierney (1995) NSW ConvR 55-767 .... 17.43, 17.44 Carly v Farrelly (1975) 1 NZLR 356 .... 9.26 Carreras Rothmans Ltd v Freeman Mathews Treasure Ltd [1985] Ch 207 .... 9.7 Carter v Carter (1857) 3 K & J 617; 69 ER 1256 .... 10.13, 10.18 Carter Holt Harvey Woodproducts Australia Pty Ltd v Commonwealth (2019) 368 ALR 390 .... 9.37 Carvita Holdings Pty Ltd v Mitsubishi Bank of Australia Ltd (1993) 6 BPR 13,327 .... 11.18 Casborne v Scarfe (1737) 1 Atk 603; 26 ER 37 .... 9.40, 16.4

Cases Case of Tanistry (1608) Dav Ir 28; 80 ER 516 .... 5.9 Cash Resources Aust Pty Ltd v BT Securities Ltd [1990] VR 576 .... 10.25, 13.27 Cassegrain v Gerard Cassegrain & Co Pty Ltd (2015) 254 CLR 425 .... 11.7, 11.14, 11.27, 11.37, 17.2, 17.53 Castle Constructions Pty Ltd v Sahab Holdings Pty Ltd (2013) 247 CLR 149 .... 11.14, 11.37, 11.57, 11.64, 11.65, 11.66, 15.43 Casuarina Rec Club Pty Ltd v The Owners Strata Plan 77971 [2011] NSWCA 159 .... 14.13 Catanzariti v Whitehouse (1981) 55 FLR 426 .... 17.46 Caunce v Caunce [1969] 1 WLR 286 .... 10.18 Cavacourt Pty Ltd v Durian (Holdings) Pty Ltd [1998] NSWSC 787 .... 14.47 Cave v Cave (1880) 15 Ch D 639 .... 9.40, 10.28, 10.29, 13.27 — v Robinson Jarvis & Rolf [2002] 1 WLR 581 .... 4.22 CBA v Nabi [2010] NSWSC 1425 .... 16.39 CBS Songs Ltd v Amstrad Consumer Electronics plc [1988] 1 AC 1013 .... 16.43 Ceda Nominees Pty Ltd v Registrar of Title [1982] ANZ ConvR 524 .... 13.7 Central Control Board (Liquor Traffic) v Cannon Brewery Company Ltd (1919) AC 744 .... 8.7 Central Newbury Car Auctions Ltd v Unity Finance Ltd (1957) 1 QB 371 .... 13.14 Certain Lloyd’s Underwriters v Cross (2012) 248 CLR 378; [2012] HCA 56 .... 3.14 Cetojevic v Cetojevic [2007] NSWCA 33 .... 9.2 CG (Deceased) on behalf of the Badimia People v State of Western Australia [2015] FCA 204 .... 14.23 Chalhoub v Chalhoub [2005] NSWSC 572 .... 17.73 Challenger Managed Investments Ltd v Direct Money Corporation Pty Ltd [2003] NSWSC 1072 .... 11.76



Chambers v Goldwin 9 Ves 254 .... 16.4 — v Randall [1923] 1 Ch 149 .... 15.31 — v Warkhouse [1797] 3 Lev 336 .... 2.3 Chambeyron Pty Ltd, Re [2017] VSC 241 .... 17.57 Chan v Chan [2020] VSCA 40 .... 7.2, 9.31 — v Cresdon Pty Ltd (1989) 168 CLR 242; 89 ALR 522; 64 ALJR 111 .... 7.14, 7.19, 7.37, 17.56 Chandler v Thompson (1811) 3 Camp 80 .... 1.27 Chandra v Perpetual Trustees Victoria Ltd [2007] NSWSC 694 .... 11.16 Chang v Registrar of Titles (1976) 137 CLR 177; 8 ALR 285 .... 9.36 Chardon, Re [1928] Ch 464 .... 6.12 Charles Marshall Pty Ltd v Grimsley (1956) 95 CLR 353 .... 9.17, 9.21, 9.22, 17.56 Charmelyn Enterprises Pty Ltd v Klonis (1981) 2 BPR 9,527 .... 16.8 Chasfild Pty Ltd v Taranto [1991] 1 VR 225 .... 11.14, 11.41 Chateau Constructions (Aust) Ltd v Zepinic (No 5) [2010] NSWSC 265 .... 16.39 Cheah Theam Swee v Equiticorp Finance Group Ltd [1992] 1 AC 472 .... 13.27 Chelsea Investments Pty Ltd v Commissioner of Taxation (1966) 115 CLR 1 .... 7.5 Chen v Sunshine Light Pty Ltd [2017] WASC 14 .... 16.27 Chester v Buckingham Travel Ltd [1981] 1 WLR 9 .... 7.27 — v Willan (1670) 2 Wms Saund 96 (85 ER 768) .... 17.52 Chhokar v Chhokar [1984] FLR 313 .... 17.38 Chia v Rennie (1997) 8 BPR 15,601 .... 16.47 Chick v Dockray [2011] TASFC 1 .... 14.35 Chieco v Evans (1990) 5 BPR 11,297 .... 17.36 Chin v Miller (1981) 37 ALR 171 .... 13.24 China Field Ltd v Appeal Tribunal (Buildings) (No 2) [2009] HKCFA 95 .... 14.36 Chomley v Firebrace (1879) 5 VLR (Eq) 57 .... 11.40 xxxiii



Australian Property Law

Churchill v Evans (1809) 1 Taunt 529; 127 ER 939 .... 3.29 Churston Golf Club v Haddock [2018] 4 WLR 53 .... 15.8 Ciaglia v Ciaglia (2010) 269 ALR 175; [2010] NSWSC 341 .... 11.37, 16.11 CIC Insurance Ltd v Bankstown Football Club Ltd (1997) 187 CLR 384; [1997] HCA 2 .... 3.14 Circuit Finance Australia Ltd (in liq) v Panella [2011] NSWSC 311 .... 10.24, 13.15 Circuit Finance Pty Ltd v Crown & Gleeson Securities Pty Ltd (2006) NSW ConvR 56,143 .... 13.12 Cirino v Registrar-General (1993) 6 BPR 13,260 .... 11.76 Citicorp Investment Bank (Singapore) Ltd v Wee Ah Kee [1997] 2 SLR 759 .... 16.8 City Developments Pty Ltd v Registrar General (2000) 135 NTR 1 .... 14.13 City of Canada Bay v Bonaccorso Pty Ltd (2007) 71 NSWLR 424 .... 11.53, 11.56, 11.57, 11.58 City of London Corporation v Appleyard [1963] 1 WLR 982 .... 3.14 CL Forrest Trust, Re [1953] VLR 246 .... 16.4 Clambake Pty Ltd v Tipperary Projects Pty Ltd (No 3) [2009] WASC 52 .... 2.16 Clarence City Council v Howlin [2016] TASSC 61 .... 11.4, 14.25 Clark v Burnie City Council [2008] TASCC 28 .... 15.46 — v Raymor (Brisbane) Pty Ltd [1982] Qd R 479 .... 13.20 Clarke v Babbitt [1927] 2 DLR 7 .... 4.10 — v Japan Machines (Australia) Pty Ltd (No. 2) (1984) 1 Qd R 421 .... 16.47 — v Ramuz [1891] 2 QB 456 .... 9.35 Classic Heights Pty Ltd v Black Hole Enterprises Pty Ltd (1994) V ConvR 54-506 .... 13.7 Cleaver v Mutual Reserve Fund Life Association [1892] 1 QB 147 .... 17.8, 17.70 xxxiv

Clem Smith Nominees Pty Ltd v Farrelly & Farrelly (1978) 20 SASR 227 .... 15.18, 15.23, 15.26, 15.32, 15.43 Clement v Jones (1909) 8 CLR 133 .... 4.9, 4.10 Clements v Ellis (1934) 51 CLR 217; [1934] HCA 18 .... 11.13, 11.27, 11.40, 11.52, 11.56 Clifford v Dove [2003] NSWSC 938 .... 15.8 Clifford’s Settlement Trust, Re; Heaton v Westwater [1981] Ch 63 .... 6.19 Climie v Wood (1868) LR 3 Ex 257 .... 2.14 Clissold v Perry (1904) 1 CLR 363 .... 2.10, 8.7 Clive Anthony Nicholson, Re [2004] QSC 480 .... 17.8 Clos Farming Estates Pty Ltd v Easton (2001) 10 BPR 18,845 .... 14.3, 14.8, 14.13 Cloutte v Storey [1911] 1 Ch 18 .... 9.40 CNG Co (Aust) Pty Ltd v Australia & New Zealand Banking Group (1992) 6 BPR 13,101 .... 16.31, 16.32 Cobb v Lane [1952] 1 All ER 1199 .... 7.6 Cobbe v Yeoman’s Row Management Ltd (2008); 1 WLR 1752 .... 7.16, 7.17 Codelfa Construction Pty Ltd v State Rail Authority (NSW) (1982) 149 CLR 337; [1982] HCA 24…. 7.27, 14.26, 14.38, 14.39 Coggs v Bernard (1703) 2 Ld Raym 909; 92 ER 107; [1558–1774] All ER Rep 1 .... 2.16, 3.10 Coles KMA Ltd v Sword Nominees Pty Ltd (1986) 44 SASR 120 .... 13.10 Colledge v H C Curlett Construction Co Ltd (1932) NZLR 1060 .... 3.2 Collins v Simonsen [2019] EWHC 2214 .... 17.57 Combet v The Commonwealth (2005) 224 CLR 494; [2005] HCA 61 .... 3.14 Combis (Trustee of the Property of Peter Jenson (Bankrupt) v Jenson (No 2) (2009) 181 FCR 178 .... 9.23 Commercial and General Acceptance Ltd v Nixon (1981) 152 CLR 491 .... 16.42 Commercial Bank of Australia Ltd v Amadio (1983) 151 CLR 447 .... 9.26

Cases Commissioner of Stamp Duties (NSW) v Yeend (1929) 43 CLR 235 .... 1.12 Commissioner of Stamp Duties (Qld) v Hopkins (1945) 71 CLR 351 .... 10.9, 17.19 Commissioner of Stamp Duties (Queensland) v Livingston [1965] AC 694 .... 9.4 Commissioner of Stamps (Western Australia) v L Whiteman Ltd (1940) 64 CLR 407; [1940] HCA 30 .... 3.14 Commissioner of State Revenue v Lend Lease Funds Management Ltd [2011] VSCA 182 .... 9.7 — v Placer Dome Inc (2018) 93 ALJR 65 .... 1.7 — v Rojoda Pty Ltd [2020] HCA 7 .... 9.37 — v TEC Desert Pty Ltd [2009] WASCA 128 .... 3.8, 3.9, 3.11 — v Uniqema Pty Ltd (2004) 9 VR 523 .... 3.3 Commissioner of Taxation v Linter Textiles Australia Ltd (in liq) (2005) 215 ALR 1 .... 9.5 — v Luxxotica Retail Australia Pty Ltd (2011) 191 FCR 561 .... 13.22 — v Metal Manufactures Ltd (2001) 108 FCR 150 .... 3.11 — v R & D Holdings Pty Ltd (2007) 240 ALR 653 .... 16.11 Commonwealth v Hazeldell Ltd (1918) 25 CLR 552 .... 8.7 — v Registrar of Titles for Victoria (1918) 24 CLR 348; 24 ALR 106 .... 14.12, 14.15 — v Verwayen (1990) 170 CLR 394; 95 ALR 321 .... 7.16, 9.30, 16.8 — v Yarmirr (2000) 101 FCR 171 .... 3.19, 5.8 — v — (2001) 208 CLR 1 .... 5.8, 5.9, 8.14, 8.30, 8.31 Commonwealth Bank of Australia v Baranyay [1993] 1 VR 589 .... 13.7 — v Kyriackou (2003) V Conv R 54-674 .... 13.7 Commonwealth Development Bank of Australia v Bradley [1999] NSWSC 544 .... 16.40



Commonwealth Life (Amalgamated) Assurance Ltd v Anderson (1946) 46 SR (NSW) 47 .... 7.2, 7.11 Commonwealth of Australia v Akiba on behalf of the Torres Strait Islanders of the Regional Seas Claim Group (2012) 289 ALR 400 .... 8.20 — v Davis Samuel Pty Ltd (No 7) [2013] ACTSC 146 .... 10.18 Commonwealth Trading Bank of Australia v Austral Lighting Pty Ltd [1984] 2 Qd R 507 .... 13.17 Composite Buyers Ltd v Soong (1995) 38 NSWLR 286 .... 13.7 Congleton v Pattison (1808) 10 East 130; 103 ER 725 .... 7.34, 15.13, 15.14 Congoo on behalf of the Bar-Barrum People v The State of Queensland [2014] FCAFC 9 .... 8.29 Conlan v Registrar of Titles [2001] 24 WAR 299 .... 11.43, 11.45, 11.46, 11.47 Conroys Smallgoods Pty Ltd v Tomlinson [2018] WASC 21 .... 13.7 Consolidated Trust Co Ltd v Naylor (1936) 55 CLR 423 .... 16.37 Con-Stan Industries of Australia Pty Ltd v Norwich Winterthur Insurance (Australia) Ltd (1986) 160 CLR 226 .... 7.27 Consul Development Pty Ltd v DPC Estates Pty Ltd (1975) 132 CLR 373 .... 11.32, 11.34 Cook, Re [1948] Ch 212 .... 9.4 Cook v Alto Prestige Pty Ltd [2010] NSWSC 92 .... 9.19 Cook’s Mortgage, Re; Lawledge v Tyndall .... 17.44 Cooke v Ingram (1893) 68 LT 671 .... 14.29 Coolbrew Pty Ltd v Westpac Banking Corporation [2014] NSWSC 1108 .... 9.19 Cooma Clothing Pty Ltd v Create Invest Develop Pty Ltd [2013] VSCA 106 .... 7.7, 7.16, 7.35 Cooney v Burns (1922) 30 CLR 216; 28 ALR 181 .... 9.15 Cooper v Chitty (1756) 1 Burr 20 .... 1.13 — v Stuart (1889) 14 App Cas 286 .... 5.5, 5.6 xxxv



Australian Property Law

Cooper’s Conveyance Trusts, Re; Crewsdon v Bagot [1956] 1 WLR 1096 .... 6.12 Cope v Keene (1968) 118 CLR 1 .... 17.56 Copeland v Greenhalf [1952] Ch 488; [1952] 1 All ER 809 .... 14.8, 14.11 Coras v Webb and Hoare [1942] St R Qd 66 .... 11.52 Corin v Patton (1990) 169 CLR 540; 92 ALR 1 .... 9.22, 15.30, 17.2, 17.55, 17.56, 17.57, 17.59, 17.64, 17.65 Coroneo v Australian Provincial Assurance Association Ltd (1935) 35 SR (NSW) 391 .... 9.40 Corozo Pty Ltd v Total Australia Ltd [1988] 2 Qd R 366 .... 11.34 Corporation of London v Riggs (1880) 13 Ch D 798; 44 JP 345; 49 LJ Ch 297 .... 14.20 Cosmichome Ltd v Southampton City Council [2013] WLR 2436 .... 15.23 Costello v Chief Constable of Derbyshire Constabulary [2001] 1 WLR 1437 .... 2.17, 2.18, 2.19 Costin v Costin (1997) NSW ConvR 55-811 .... 17.57 Cottee Dairy Products Pty Ltd v Minad Pty Ltd (1997) 8 BPR 15,611 .... 3.8, 3.11 Couche v Adams [2002] NSWSC 27 .... 14.44, 15.48 Coulls v Bagot’s Executor and Trustee Co Ltd (1967) 119 CLR 460 .... 9.26 Countess of Bective v Federal Commissioner of Taxation (1932) 47 CLR 417 .... 9.13 Courtenay v Austin (1961) 78 WN (NSW) 1082 .... 13.27 Cowcher v Cowcher (1972) 1 WLR 425; [1972] 1 All ER 943 .... 9.26 Cowell v Rosehill Racecourse Co Ltd (1937) 56 CLR 605 .... 1.12, 1.13, 1.14 Cowlishaw v Ponsford (1928) 28 SR (NSW) 331 .... 14.30 Cowper v Fletcher (1865) 6 B & S 464; 122 ER 1267 .... 17.59 Cox v Bishop (1857) 8 De G & J 276; 44 ER 604 .... 15.2 — v Coulson [1916] 2 KB 177 .... 1.12 xxxvi

CPT Custodian Pty Ltd v Commissioner of State Revenue (2005) 224 CLR 98 .... 9.3 Crabb Foundation v Corbett-Jones [2006] NSWSC 495 .... 5.15, 5.18 Crago v Julian [1992] 1 All ER 744 .... 7.4 Cram Foundation v Corbett-Jones [2006] NSWSC 495 (Unreported, 26 May 2006) .... 6.12, 6.13, 6.24 Cray v Willis (1729) 2 P Wms 529; 24 ER 847 .... 17.56 Credit Connect v Carney Credit Connect v Smit [2010] NSWSC 910 .... 11.22 Creelman v Hudson Bay Co (1920) AC 194 .... 14.29 Cresswell, Re [2018] QSC 142 .... 1.29 Crest Nicholson Residential (South) Ltd v McAllister [2004] 2 All ER 991 .... 15.25 Creswell v Hughes (1862) 1 H & C 421, 158 ER 950 .... 17.42 Cricklewood Property and Investment Trust Ltd v Leighton’s Investment Trust Ltd (1945) AC 221 .... 7.37, 7.39 Crippen, Re Jane Tucker (1920) 21 SR (NSW) 175 .... 17.70 Crisp v Mullings (1976) EGD 730 .... 9.21 Crompston v French (1995) V ConvR 54-529 .... 13.7 Crook v Hill [(1871) LR 6 Ch App 311 .... 14.26 Cross v National Australia Bank Ltd (1993) Q ConvR 54-33 .... 13.7 Crossley v Crossley [2005] EWCA Civ 1581; [2006] 1 FCR 655 .... 17.30 Crossley & Sons Ltd v Lightowler (1867) 2 Ch App 478 .... 14.43 Crow v Campbell (1884) 10 VLR (E) 186 .... 11.40, 11.42 Crowley v Crowley (1984) 51 Nfld & PEIR 140 .... 4.10 Crown v Cosmopolitan Hotel (Vic) Ltd .... 7.19 Crown Melbourne Ltd v Cosmopolitan Hotel (Vic) Pty Ltd (2016) 260 CLR 1 .... 7.7, 7.14, 7.18

Cases Cruickshank & Co Ltd v Ewington (1905) 24 NZLR 957 .... 13.27 Cruse v Mount [1933] Ch 278 .... 7.21 Cuckmere Brick Co Ltd v Mutual Finance Ltd [1971] Ch 949 .... 16.41, 16.42 Cumberland Consolidated Holdings Ltd v Ireland [1946] KB 264 .... 9.35 Cumerlong Holdings Pty Ltd v Dalcross Properties Pty Ltd (2011) 243 CLR 492 .... 11.55 Currey v Federal Building Society (1929) 42 CLR 421 .... 13.21 Currumbin Investments Pty Ltd v Body Corp Mitchell Park Parkwood CTS [2012] Qd LR 511 .... 14.40 Cussen and of Beechworth Land Estates Pty Ltd v Douglas Estate Holdings Pty Ltd (2019) 140 ACSR 1 .... 16.28 Cuthbertson v Swan (1877) 11 SA LR 102 .... 13.2 Cuzeno Pty Ltd v The Owners Strata Plan 65870 [2013] NSWSC 1385 .... 14.33 D

Da Costa, Re; Clarke v Church of England Collegiate School of St Peter [1912] 1 Ch 337 .... 6.12 Dabbs v Seaman (1925) 36 CLR 538 .... 14.25, 14.29, 14.30, 14.34 Dagenham (Thames) Dock Company, Re; Ex parte Hulse (1873) LR 8 Ch App 1022 .... 9.36 Dai v Liu [2018] VSC 189 .... 13.25 Dale v Hamilton (1846) 5 Hare 369; 67 ER 955 .... 9.15 Dalton v Angus (1881) 6 App Cas 740 .... 4.10, 14.11, 14.35 Damberg v Damberg (2001) 52 NSWLR 492; [2001] NSWCA 87 .... 9.21, 17.13 Daniel v Camplin (1845) 7 Man & G 167; (135 ER 73) .... 17.52 Darmanin v Cowan [2010] NSWSC 1118 .... 3.3 Davies, Re (1989) 1 Qd R 48 .... 13.10 Davies v Sear (1869) LR 7 Eq 427 .... 14.22, 14.32



Davis v Johnson [1979] AC 264 .... 17.36 — v Taylor (1948) 48 SR (NSW) 514 .... 16.46 Dayah v The Partners of Bushloe Street Surgery [2020] EWHC 1375 .... 7.39 De Falbe, Re; Ward v Taylor [1901] 1 Ch 523 .... 3.14 De Mattos v Gibson (1858) 4 De G & J 276; 45 ER 108 .... 15.22 De Rose v State of South Australia (No 2) [2005] FCAFC 110 .... 8.15 Debonair Nominees Pty Ltd v J & K Berry Nominees Pty Ltd (2000) 77 SASR 261 .... 7.30 Deen v Andrews [1986] 1 EGLR 262 .... 3.2 Deguisa v Lynn [2019] SASCFC 107 .... 15.14, 15.22, 15.23, 15.32 — v — [2020] HCA 39 .... 15.23, 15.34, 15.41, 15.43, 15.44, 15.45 Delehunt v Carmody (1986) 161 CLR 464 .... 17.15, 17.18, 17.24, 17.29 Delgamuukw v British Columbia .... 8.23, 8.26 Delohery v Permanent Trustee Co of NSW (1904) 1 CLR 283 .... 14.35 Dempster v Cleghorn (1813) 2 Dow 40 .... 14.11 Den Norske Bank v Acemex Management Co (2003) 2 All ER (Comm) 318 .... 16.41 Denn v Gaskin (1777) 2 Cowp 657 .... 17.15 Denn d Tarzwell v Barnard (1777) 2 Cowp 595; 98 ER 1259 .... 2.11 Dennerstein, Re [1963] VR 688 .... 15.32, 15.41, 15.42, 15.43 Dennis v McDonald [1982] Fam 63 .... 17.36, 17.38, 17.42 Denny, Mott and Dickson Ltd v James B Fraser and Co Ltd [1944] AC 265 .... 9.26 Depas Pty Ltd v Dimitriou (2007) V ConvR 54-728 .... 13.12 Deputy Commissioner of Taxation v Huang [2019] FCA 1728 .... 17.31, 17.32 — v Vasiliades (2014) 323 ALR 59 .... 17.31 Destri Enterprises Pty Ltd v Donald James Maxwell [2012] NSWC 295 .... 14.44 Detroit Baseball Club v Deppert 61 Mich 63 (1886) .... 1.27 xxxvii



Australian Property Law

Devefi Pty Ltd v MaHeffy Perl Nagy Pty Ltd (1993) 113 ALR 225 .... 6.3 Devine v Holloway (1861) 14 Mood CC 290…. 14.35 DHJPM Pty Ltd v Blackthorn Resources (2011) 285 ALR 311 83 NSWLR 728 .... 7.16 Dickinson v Burrell (1866) LR 1 Eq 337 .... 9.40, 10.28 Diemasters v MeadowCorp [2001] 52 NSWLR 572 .... 11.74, 11.75, 11.79, 13.4 Dillwyn v Llewellyn (1862) 4 De GF & J 517; 45 ER 1285 .... 3.30, 7.16, 7.17, 9.30 Diplock, Re [1948] Ch 465 .... 9.26 Director of Public Prosecutions for the State of Victoria v Le (2007) 232 CLR 562 .... 17.50 Dixon v Muckleston (1872) LR 8 Ch App 155 .... 13.14, 13.21, 13.24 DKLR Holding Co (No 2) Pty Ltd v Commissioner of Stamp Duties (NSW) [1980] 1 NSWLR 510 .... 9.2, 9.5, 9.6, 9.13, 10.9, 10.10 — v Commissioner of Stamp Duties (NSW) (1982) 149 CLR 431; 40 ALR 1 .... 9.17, 17.56 Do Carmo v Ford Excavations Pty Ltd (1984) 154 CLR 234 .... 10.18 Dobbie v Davidson (1991) 23 NSWLR 625 .... 11.64, 11.65, 11.76, 14.26, 14.35 Dockrill v Cavanagh (1944) 45 SR (NSW) 78 .... 7.2 Doe v Barnard (1849) 13 QB 945 .... 2.9 — v Bird (1809) 11 East 49; 103 ER 922 .... 17.36 Doe d Hall v Penfold (1838) 8 C & P 536; 173 ER 607; [1838] EngR 489 .... 2.10 Doe d Hughes v Dyeball (1829) 3 C & P 610; Mood & M 346; 173 ER 1184 .... 2.8, 2.11 Doe d Lewis v Rees (1834) 6 C & D 610 .... 4.20 Doe d Smith and Payne v Webber (1834) 1 AD and E 119; 110 ER 1152 .... 2.11 Doe d Stansbury v Arkwright (1833) 5 Car and P 575; 172 ER 1105 .... 2.11 xxxviii

Doe d Wilkins v Marquis of Cleveland (1829) 9 B and C 864; 109 ER 321 .... 2.11 Doherty v Allman (1878) 3 App Cas 709 .... 1.12, 1.13, 15.19 Dolphin’s Conveyance, Re [1970] Ch 654 .... 15.38, 15.39 Donald v Suckling (1866) LR 1 QB 585 .... 2.16 Donaldson v Donaldson (1854) Kay 711; 69 ER 303 .... 17.56 Donnelly v Adams (1905) 1 IR 154 .... 14.29 Donoghue v Stevenson [1932] AC 562 .... 1.13, 1.27, 7.22 Doodeward v Spence (1908) 6 CLR 406 .... 1.29, 2.3, 2.4, 2.5, 2.6 Double Bay Newspapers Pty Ltd v A W Holdings Pty Ltd (1996) 42 NSWLR 409 .... 13.20 Doueihi v Construction Technologies Australia Pty Ltd [2016] NSWCA 105 .... 7.16 Douglas v Baynes (1908) AC 477 .... 14.26 Douglas Properties Ltd v Olde World Antiques etc Ltd (1980) 28 AR 108 .... 13.27 Downie v Lockwood [1965] VR 257 .... 7.27, 11.5, 11.69 Dr Foster’s Case [(1614) 11 Co Rep 56b .... 11.52 Drake v Mitchell (1803) 3 East 251; 102 ER 594 .... 13.27 — v Whipp [1996] 2 FCR 296 .... 17.30 Draper’s Conveyance, Re [1969] 1 Ch 486 .... 15.56 Drever v Drever [1936] ALR 446 .... 17.13 Drummond’s Settlement, Re [1988] 1 WLR 239 .... 6.18, 6.19 Duffield v Duffield [1827] EngR 56; 6 ER 525 .... 5.15 Duke of Norfolk’s Case (1681) 3 Ch Cas 1; 22 ER 931 .... 6.11, 6.22 Duncan v Louch (1845) 6 QB 904; 115 ER 341 .... 14.11, 14.12 Dura Australia Constructions Pty Ltd v Hue Boutique Living Pty Ltd [2014] VSCA 326 .... 2.20

Cases Durian (Holdings) Pty Ltd v Cavacourt Pty Ltd (2000) 10 BPR 18,099 .... 14.47 Dutton v Taylor (1701) 2 Lut 1487; 125 ER 819 .... 14.20, 14.22, 14.32 Dwyer v Kaljo (1992) 27 NSW LR 728 .... 17.42 Dyce v Lady Hay (1852) 1 Macq 305 .... 14.11, 14.12, 14.15 Dyer v Dyer (1788) 2 Cox Eq Cas 92; 30 ER 42 .... 9.17 Dyson v Foster [1909] AC 98 .... 7.34 E

Eade v Vogiazopoulos (1993) V Conv R 154,458 .... 11.41 Eagle Trust Plc v SBC Securities Ltd [1992] 4 All ER 488; [1993] 1 WLR 484 .... 10.18 Eagling v Gardner [1970] 2 All ER 838 .... 15.38 Earl de la Warr v Miles (1881) 17 Ch D 535 .... 14.35 Eastern Nitrogen Ltd v Commissioner of Taxation (1999) 99 ATC 5163; [1999] FCA 1536 .... 3.10 Eastern Nitrogen Ltd v Commissioner of Taxation (2001) 108 FCR 27 .... 3.11 Eaton v The Swansea Waterworks Co (1851) 17 QB 267; 117 ER 1282 .... 4.10 Eckford v Stanbroke Pastoral Co Pty Ltd [2012] QSC 48 .... 4.23 Edwards v Amos (1945) 62 WN (NSW) 204 .... 2.17 — v State Trustees Ltd [2016] VSCA 28 .... 17.8 Edwards, Re, Estate of Edwards (2011) 81 NSWLR 198; [2011] NSWSC 478 .... 2.5 Edwards, Re; State Trustees Ltd v Edward [2014] VSC 392 .... 17.8 Edwards, Re; State Trustees Ltd v Edward [2016] VSCA 28 .... 17.70 Edwinton Commercial Corp v Tsavliris Russ (Worldwide Salvage and Towage) Ltd (The Sea Angel) [2007] 2 Lloyd’s Rep 517 .... 7.39 Effeney v Millar Investments Pty Ltd [2011] NSWSC 708 .... 14.40, 14.42, 14.44, 14.47



Egerton v Brownlow (1853) 4 HLC 1 .... 5.17 Egmont v Smith (1877) 6 Ch D 469 .... 9.35 Elderly Citizens Homes of SA Inc v Balnaves [1998] 72 SASR 210 .... 13.20 Elders Trustee & Executor Company Ltd v EG Reeves Pty Ltd (1988) 84 ALR 734 .... 16.4 Elfar v Registrar-General of New South Wales [2010] NSWSC 539 .... 11.73 Elitestone Ltd v Morris [1997] 1 WLR 687 .... 3.2, 3.3, 3.5, 3.17 El-Kazzi v Kassoum [2009] NSWSC 99 .... 11.22, 11.26, 13.20 Ellenborough Park, Re [1956] Ch 131 .... 14.1, 14.6, 14.8, 14.11, 14.12, 14.13 Elliot v Morley (Earl) (1907) 51 Sol J 625 .... 3.19 Ellis v Marshall [2006] NSWSC 448 .... 16.28, 16.32 Ellison v Ellison (1802) 6 Ves Jun 656; 31 ER 1243 .... 17.56 — v Marshall (No 2) [2016] WASC 333 .... 14.47 — v Vukicevic (1986) 7 NSWLR 104 .... 14.3 Elliston v Reacher [1908] 2 Ch 374; [1908–10] All ER Rep 612 .... 15.19, 15.35, 15.36, 15.38, 15.39, 15.42, 15.43 — v Reacher [1908] 2 Ch 665 .... 15.9, 15.34 Elton v Cavill (No 2) (1994) 34 NSWLR 289 .... 6.6, 6.7 Elvis v Archbishop of York (1619) Hob 315; 80 ER 458 .... 2.11 Elwes v Brigg Gas Company (1886) 33 Ch D 562 (UK) .... 2.14 Emanuel (Rundle Mall) Pty Ltd v Commissioner of Stamps (1986) 41 SASR 122 .... 3.11 Embrey v Owen (1851) 6 EX 353; 155 ER 579 .... 1.25 Emerald Quarry Industry Pty Ltd v Commissioner of Highways (1976) 14 SASR 486 .... 14.3 Emerald Securities Pty Ltd v Tee Zed Enterprises Ltd (1981) 28 SASR 214 .... 16.47 xxxix



Australian Property Law

Emhill Pty Ltd v Bonsoc Pty Ltd [2004] V ConvR 54–685 .... 7.37, 7.40 — v Bonsoc Pty Ltd (No 2) [2007] VSCA 108 .... 7.27 Emile Elias & Co Ltd v Pine Groves Ltd [1993] 1 WLR 305 .... 15.38 Empire Securities Pty Ltd v Miocevich [2008] WASCA 52 .... 3.8, 3.9 Engelwood Properties Ltd v Patel [2005] 1 WLR 1961 .... 9.35 English, Scottish and Australian Bank Ltd v Phillips (1937) 57 CLR 302 .... 16.15 Eon Metals NL v Commissioner of State Taxation (WA) (1991) 91 ATC 4841 .... 3.1, 3.3, 3.5, 3.8 Epic Energy (Pilbara Pipeline) Pty Ltd v Commissioner of State Revenue (2011) 43 WAR 186 .... 3.11 Epic Feast Pty Ltd v Mawson KLM Holdings Pty Ltd (1998) 71 SASR 161; [1998] SASC 7106 .... 16.7, 16.8, 16.27 Epworth Group Holdings Pty Ltd v Permanent Custodians Ltd [2011] SASFC 32 .... 11.14 ER Ives Investment Ltd v High [1967] 2 QB 379 .... 15.8, 15.9 Errington v Errington & Woods [1952] 1 All ER 149; [1952] 1 KB 290 .... 1.13, 7.6 ES & A Bank v Phillips (1937) 57 CLR 302; [1937] ALR 104 .... 17.62 Esanda v Gibbons [1999] NSWSC 1094 .... 2.17 Espin v Pemberton (1859) 3 De G & J 54; 44 ER 1380 .... 11.32 Espley v Wilkes [1872] 7 Exch 298 .... 14.29 Esposito v The Commonwealth of Australia [2015] FCAFC 160 .... 1.7 Essex County Roman Catholic Separate School Board and Antaya, Re (1977) 80 DLR (3d) 405 .... 6.12 Estate Late Chow Cho-Poon, Re; Application for judicial advice [2013] NSWSC 844 .... 6.19 Ettershank v Zeal (1882) 8 VLR 333 .... 10.13 xl

Eustace v Scawen (1624) Cro Jac 696 (79 ER 604) .... 17.52 Evandale Estates Pty Ltd v Keck [1963] VR 647 .... 11.52 Evans v Bicknell (1801) 6 Ves 174; 31 ER 998 .... 10.12 Evanturel v Evanturel (1874) LR6 PC 1 .... 6.8 Eves v Eves [1975] EWCA Civ 3; [1975] 3 All ER 768; [1975] 1 WLR 1338 .... 9.26, 9.28 Ewen v Gerofsky 382 NYS 2d 651 (1976) .... 9.26 Expo International Pty Ltd (recs and mgrs appointed) (in liq) v Chant [1979] 2 NSWLR 820 .... 16.48 F

F & F Holdings Pty Ltd v Ridge Lane Pty Ltd [1998] VSCA 72 .... 11.23 Facchini v Bryson [1952] 1 TLR 1386 .... 7.6 Fachetti v Fachetti [2004] NSWSC 898 .... 17.64 Fairbairn v Varvaressos (2010) 78 NSWLR 577 .... 5.14, 5.15, 5.19 Fairclough v Swan Brewery Co Ltd [1912] UKPC 1; [1912] AC 565 .... 16.6, 16.8 Farah Constructions Pty Ltd v Say-Dee Pty Ltd (2007) 230 CLR 89; 81 ALJR 1107; [2007] HCA 22 .... 11.14, 11.18, 11.24, 11.33, 11.35, 11.36, 11.37, 11.38, 11.47, 11.48, 14.39, 16.8 Farquharson and Co v King (1902) AC 325 .... 14.29 Farrar v Farrars Ltd (1888) 40 Ch D 395 .... 9.40 Farrington v Smith (1894) 20 VLR 90 .... 17.62 Federal Commissioner of Taxation v Metal Manufactures (2001) 108 FCR 150 .... 3.11 Federated Homes Ltd v Mill Lodge Properties Ltd [1980] 1 All ER 371; [1980] 1 WLR 594 .... 15.19, 15.25, 15.26, 15.27 Fejo v Northern Territory (1998) 195 CLR 96; 156 ALR 721; 72 ALJR 1442 .... 1.6, 8.8, 8.14, 8.19, 8.26, 8.27, 8.28, 8.29, 8.31, 8.47 Ferella v Official Trustee in Bankruptcy [2015] NSWCA 411 .... 17.73

Cases Ferguson v Miller [1978] 1 NZLR 819 .... 17.36 Fewings, Ex parte; In Re Sneyd (1883) 25 Ch D 338 .... 16.4 Fibrosa Spolka Akcyjna v Fairbairn Lawson Combe Barbour Ltd [1943] AC 32 .... 9.26 Field v Sullivan [1923] VLR 70 .... 2.17 Figgins Holdings v SEAA Enterprises Pty Ltd (1999) 196 CLR 254 .... 16.17, 16.18, 16.20 Finch v Finch [1808] EngR 125; (1808) 15 Ves Jun 43 .... 9.21 Fines v Spencer (1794) 3 Dy 306 b .... 2.3 Finesky Holdings Pty Ltd v Minister for Transport for Western Australia [2001] WASC 87 .... 11.4, 13.3 Fink v Robertson (1907) 4 CLR 864 .... 16.15, 16.48 Finlay v R & I Bank of Western Australia Ltd (1993) 6 BPR 13,232; NSW ConvR 55-686 .... 13.20, 13.27 Finlayson v Campbell [1997] NSWSC 1050 .... 14.7 Finucane v The Registrar of Titles [1902] St R Qd 78 .... 11.74 First City Capital Ltd v Ampex Canada Inc (1989) 75 CBR 109 .... 13.27 Fisher v Wiggs (1700) 12 Mod Rep 296; 1 P Wms 14; 1 Salk 391 .... 17.15 Fistar v Riverwood Legion and Community Club Ltd (2016) 91 NSWLR 732 .... 11.37 Fitt v Luxury Developments Pty Ltd [2000] VSC 258 .... 15.27, 15.43 Flack v Chairperson, National Crime Authority [1997] FCA 1331 .... 2.14 Fletcher v Fletcher (1844) 4 Hare 67; 67 ER 564 .... 17.56 Flourentzou v Spink [2019] NSWCA 315 .... 9.21 Ford v Grey (1703) 1 Salk 285; 91 ER 253; 6 Mod 44; 87 ER 807 .... 17.42 Forestview Nominees v Perpetual Trustees WA (1998) 193 CLR 154 .... 15.2, 15.19, 15.20, 15.21, 15.22, 15.24, 15.25, 15.26



Forgeard v Shanahan (1994) 35 NSWLR 206 .... 17.34, 17.35, 17.36, 17.41, 17.42, 17.43, 17.44 Formby v Barker [1903] 2 Ch 539 .... 15.31 Forrest v Nix [2012] NSWSC 493 .... 17.73 Forrest, Re; Trustees Executors and Agency Co Ltd v Anson [1953] VLR 246; [1953] ALR 532 .... 17.62 Forrest Trust, Re (1953) VLR 246 .... 9.40 Forster v Finance Corporation of Australia Ltd (1980) VR 63 .... 13.10 Forsyth v Blundell (1973) 129 CLR 477 .... 13.27, 16.41, 16.42, 16.46, 16.47 Fortescue Metals Group v Warrie on behalf of the Yindjibarndi People [2019] FCAFC 177 .... 8.6 Foster v Mackinnon (1869) LR 4 CP 704 .... 13.2 — v Warblington Urban District Council [1906] 1 KB 648 .... 14.36 Foudoulis v O’Donnell [2020] VSC 248 .... 15.48 Foundas v Arambatzis [2020] NSWCA 47 .... 9.21 Fourniotis v Vallianatos [2018] VSC 369 .... 4.10 Foxter v Blackstone I Myl & K 307 .... 10.23 Francis, Re (1988) 82 ALR 335 .... 17.53 Frank Warr and Co Ltd v London County Council [1904] 1 KB 713 .... 1.12 Franklin v Ind (1883) 17 SA LR 133…. 13.2 Fraser v Di Paolo (2008) V ConvR 54-751 .... 15.48 Frasers Lorne Pty Ltd v Joyce Goldsworthy Burke [2008] NSWSC 743 .... 14.47 Frater v Finlay (1968) 91 WN (NSW) 730 .... 14.8 Frazer v Walker [1967] 1 AC 569 .... 11.7, 11.11, 11.12, 11.13, 11.14, 11.27, 11.29, 11.30, 11.32, 11.34, 11.36, 11.37, 11.42, 11.44, 11.45, 11.50, 11.56, 11.67, 11.78, 13.10, 14.26, 14.43 Freed v Taffel [1984] 2 NSWLR 322 .... 17.50, 17.56 xli



Australian Property Law

Freeman v Freeman (1691) 2 Vern 234 (23 ER 751) .... 6.2 Freemasons Hospital v Attorney General (Vic) [2010] VSC 373 .... 5.15, 5.18, 6.13 French v Hope (1887) 56 LT 57 .... 9.40 — v Queensland Premier Mines [2006] VSCA 287 .... 16.37 Frewen v Relfe (1787) 2 Bro CC 220; 29 ER 123 .... 17.50, 17.62 Friends Provident Life Office, Re [1999] 1 All ER (Comm) 28 .... 7.7 Frieze v Unger [1960] VR 230 .... 17.46, 17.47, 17.59 Frogley v Earl of Lovelace (1859) Johns 333 .... 1.12 Frost, Re (1889) 43 Ch D 246 .... 6.15 Fry v Metzelaar [1945] VR 65 .... 7.2 FTFS Holdings Pty Ltd v Business Acquisitions Australia Pty Ltd [2006] NSWSC 846 .... 13.7 Fuji Xerox Australia Pty Ltd v Thoi [2018] VSC 483 .... 16.37 Funds in Court, Re; Application of Mango Credit Pty Ltd [2016] NSWSC 199 .... 16.9 Furness Railway Co v Cumberland Cooperative Building Society (1884) 52 LT 144 .... 14.29 Fysh v Page (1956) 96 CLR 233 .... 9.40 G

G and C Kreglinger v New Patagonia Meat and Cold Storage Company Ltd [1913] UKHL 1; [1914] AC 25 .... 16.6, 16.7, 16.8, 16.9 Gadsden v Commissioner of Probate Duties (1978) VR 653 .... 9.26 Gage, Re [1898] 1 Ch 498 .... 6.12 Gaite’s Will Trusts, Re [1949] 1 All ER 459 .... 6.15 Galafassi v Kelly (2014) 87 NSWLR 119 .... 7.37 Gallagher v Rainbow (1994) 179 CLR 624; 121 ALR 129 .... 14.39, 14.47 Ganga Dhar v Shankar Lal (1958) 45 AIR 770 .... 16.8 xlii

Garafano v Reliance Finance Corporation Ltd (1992) NSW Conv R 55-640 .... 11.32 Garcia v National Australia Bank Ltd (1998) 72 ALJR 1243 .... 13.27 Gardner v Hodgson’s Kingston Brewery [1903] AC 229 .... 14.35 Garland v Brown (1864) 10 LT 292 .... 6.11, 6.16 Garnett v Bradley (1878) 3 App Cas 944 .... 11.52 Garnett, Re; Robinson v Gandy (1886) 33 Ch D 300 .... 9.40 Garrard v Frankel (1862) 30 Beav 445 .... 9.40 — v Tuck (1849) 8 CB 231; 137 ER 498 .... 9.6 Gaskett v Gosling [1896] 1 QB 669 .... 16.48 Gaw v Coras Iompair Eireann [1953] IR 232 .... 7.34 Gee v Smart (1857) 8 E & B 313 .... 1.12 Gel Custodians v Gibson [2016] WASC 318 .... 13.7 General Finance Agency & Guarantee Co v Perpetual Executors & Trustees (1902) 27 VLR 739 .... 13.14, 13.27 George v McDonald (1992) 5 BPR 11,659 .... 17.73 — v Webb [2011] NSWSC 1608 .... 9.19 George Wimpey & Co Ltd v Sohn [1967] Ch 487; [1966] 1 All ER 232 .... 4.1, 4.14, 4.16, 14.12 Georgeski v Owners Corporation SP49833 (2004) 62 NSWLR 534 .... 3.19 Gerard Cassegrain & Co Pty Ltd v Cassegrain [2013] NSWCA 453 .... 11.47, 17.68 Gerhardy v Brown (1985) 159 CLR 70 .... 8.4 Ghey & Galton’s Application, Re [1957] 2 QB 650 .... 14.47 Gibbs v Messer [1891] AC 248; [1891-4] All ER Rep Ext 2047 .... 11.7, 11.9, 11.10, 11.11, 11.14, 11.16, 11.30, 11.40, 11.41, 15.43 Gibbs and Houlder Brothers and Co Ltd’s Lease, Re [1925] Ch 198 .... 7.31 Gifford v Lord Yarborough (1828) 5 Bing 163; 130 ER 1023 .... 3.22



Cases Gigi Entertainment Pty Ltd v Schmidt [2013] NSWCA 287 .... 7.38 Giles decd, Re [1972] 1 Ch 544 .... 17.70 Gimblett v Purton (1871) LR 12 Eq 427 .... 6.18 Gissing v Gissing [1971] AC 886; [1970] 2 All ER 780 .... 17.30, 17.56 Giumelli v Giumelli (1999) 196 CLR 101; 73 ALJR 547 .... 7.16, 7.17, 9.2, 9.30, 9.31, 9.32 Glasshouse Investments Pty Ltd v MPJ Holdings Pty Ltd [2005] NSWSC 546 .... 7.27 Glover v Pfeuffer (1914) 163 SW 984 .... 4.10 GLS v Russell Weisz (2018) 52 WAR 413 .... 2.5, 2.6 Goddard v Lewis (1909) 101 LT 528 .... 17.62 Godfrey Constructions Pty Ltd v Kanangra Park Pty Ltd (1972) 128 CLR 529 .... 13.10 Godmanchester Town Council, R (on the application of) v Secretary of State for the Environment, Food and Rural Affairs [2007] UKHL 28 .... 14.35 Goldberg v Edwards [1950] 1 Ch 247 .... 14.25 Goldcorp Exchange Ltd (in receivership), Re [1995] 1 AC 74 .... 9.29 Golden Mile Property Investments Pty Ltd (in liq) v Cudgegong Australia Pty Ltd (2015) 319 ALR 151; 105 ACSR 605 .... 9.37, 9.41, 10.18, 16.47 Golding v Hands [1969] WAR 121 .... 17.56 — v Tanner (1991) 56 SASR 482 .... 11.66, 14.35 Goldstein v Shyzi Pty Ltd [2017] NSWSC 398 .... 16.24 Goldsworthy Mining Ltd v Federal Commissioner of Taxation (1973) 128 CLR 199 .... 7.7, 7.8, 8.23 Gomez v State Bank of New South Wales Ltd [2002] FCA 442 .... 16.42, 16.48 Goodman v Gallant [1986] 1 All ER 311; [1986] Fam 106 .... 17.30 Goodright v Wells (1781) 2 Dougl 771; 99 ER 491 .... 9.6

Goodtitle v Tombs (1770) 3 Wils KB 118; 95 ER 965 .... 17.35, 17.36, 17.42 Goodtitle d Parker v Baldwin (1809) 11 East 488; 103 ER 1092 .... 2.11 Goodwin v Phillips (1908) 7 CLR 1 .... 11.52 — v Western Australian Sports Centre Trust [2014] WASC 138 .... 4.7, 4.19 Gordon v Lidcombe Developments Pty Ltd [1966] 2 NSWR 9 .... 7.24 Gotobed v Pridmore (1970) 115 SJ 78 .... 14.44 Gould v Kemp (1834) 2 My and K 304 .... 17.15, 17.62 Goyal v Chandra [2006] NSWSC 239 .... 6.7 Grafstein v Holme and Freeman (1958) 12 DLR (2d) 727 .... 2.14 Graham v Peat (1801) 1 East 244 .... 2.3 Grahame Allen & Sons Pty Ltd v Water Resources Commission [2000] 1 Qd R 523 .... 4.22 Grainge v Wilberforce (1889) 5 TLR 436 .... 17.56 Grant v Edmundson [1931] 1 Ch 1 .... 7.34, 15.19 — v Edwards [1986] 2 All ER 426; [1986] Ch 638 .... 17.30 Great Investments Ltd v Warner [2016] FCAFC 85 .... 10.18 Great West Permanent Loan Co v Friesen [1925] AC 208 .... 11.13, 13.21 Greco v Swinburne Ltd [1991] 1 VR 304 .... 7.11 Green Growth No 2 Ltd v Queen Elizabeth the Second National Trust [2016] NZCA 308 .... 10.29 Gregory v Alger (1888) 19 VLR 565 .... 11.23 Greig v Watson (1881) 7 VLR (Eq) 79 .... 9.40, 16.4 Gresley v Mousley (1859) 4 De G & J 78; 45 ER 31 .... 9.40, 10.28 Grey v Inland Revenue Commissioners [1960] AC 1 .... 9.11 Grgic v Australia & New Zealand Banking Group Ltd (1994) 33 NSWLR 202 .... 11.32, 11.34, 11.67, 14.26 xliii



Australian Property Law

Griffies v Griffies (1863) 8 LT 758 .... 17.42 Griffiths v Northern Territory [2007] 165 FCR 391 .... 8.6 Grill v Hockey (1991) 5 BPR 11,421 .... 14.44, 14.46 Grimaldi v Chameleon Mining NL (No 2) (2012) 287 ALR 22 .... 11.37 Grimes v Stacke (1610) Cro Jac 262 .... 2.3 Grundt v Great Boulder Pty Gold Mines Ltd (1937) 59 CLR 641 .... 7.17, 9.15, 13.24 Guerin v R (1984) 13 DLR (4th) 321 .... 8.6 Gumana v Northern Territory of Australia [2007] FCAFC 23 .... 3.19, 3.25 Gumland Property Holdings Pty Ltd v Duffy Bros Fruit Market (Campbelltown) Pty Ltd (2008) 234 CLR 237 .... 7.35, 7.37, 7.38 Gunns Ltd v Balani Pty Ltd [2011] FCA 431 .... 11.22, 13.3 Gurfinkel v Bentley Pty Ltd (1966) 116 CLR 98 .... 16.11 Gusheroski v Lewis (1946) 167 P (2d) 390 .... 4.10 Guth v Robinson (1977) 1 BPR 9209 .... 14.44 Guthrie v ANZ Banking Group Ltd (1991) 23 NSWLR 672 .... 17.61 H

H & R Securities Ltd v Sayer [2009] NSWSC 427 .... 3.28 H, AE (No 2), Re [2012] SASC 177 .... 2.5 Hack v Minister for Lands (1905) 3 CLR 10 .... 11.52 Hagan v Waterhouse (1991) 34 NSWLR 308 .... 9.11 Hale v Dobbie and the Registrar of Titles (Unreported, 22 April 1984) BC 9401259 .... 14.45 Hall v Beckenham Corporation [1949] 1 KB 716 .... 2.14 — v Busst (1960) 104 CLR 206 .... 6.2, 6.3, 6.4, 6.6, 6.9 — v Knight & Baxter [1914] P 1 .... 17.70 Hallen v Spaeth (1923) AC 684 .... 7.37 xliv

Hallifax Property Corporation Pty Ltd v GIFC Ltd (1987) 4 BPR 9708 .... 16.47 Halloran v Firth (1926) 26 SR (NSW) 183 .... 7.37 — v Minister Administering National Parks and Wildlife Act 1974 (2006) 224 ALR 79; 80 ALJR 519; [2006] HCA 3 .... 11.7, 11.14, 13.3, 14.39 Halsall v Brizell [1957] Ch 169 .... 15.8, 15.9, 15.12 Hamilton v Joyce [1984] 3 NSWLR 279 .... 14.36 — v Kaljo (1987) 17 NSWLR 381 .... 4.22 Hamlet of Baker Lake v Minister of Indian Affairs .... 8.23 Hamlyn v Wood [1891] 2 QB 488 .... 14.26 Hampshire Automotive Centre Pty Ltd v Centre Com (Sunshine) Pty Ltd [2019] VSCA 77 .... 14.33, 14.36, 14.42 — v Wickens (1878) 7 Ch D 555 .... 7.27 Hancock Prospecting Pty Ltd v Wright Prospecting Pty Ltd [2012] WASCA 216 .... 17.57 Hannah v Peel [1945] KB 509 .... 2.2, 2.14 Hansford v Jago [1921] 1 Ch 322; [1921] 90 LJ Ch 129; [1920] All ER Rep 580 .... 14.20 Hanson Construction Materials Pty Ltd v Roberts [2016] NSWCA 240 .... 13.18 — v Vimwise Civil Engineering Pty Ltd (2006) NSW ConvR 56,137 .... 13.12 Hanson v Grassy Gully Gold Mining Co (1900) 21 NSWLR 271 .... 3.21 Haque v Commissioner for ACT Revenue (2006) 62 ATR 1116 .... 16.18 Harbour Port Consulting v NSW Maritime [2011] NSWSC 813 .... 9.31 Harmwood v Oglander (1803) 8 Ves Jun 106; 32 ER 293 .... 9.6 Harnett v Green (No 2) (1883) 4 LR (NSW) 292 .... 4.10 Harold R Finger & Co Pty Ltd v Karellas Investments Pty Ltd [2016] NSWCA 123 .... 7.37 Harper v Minister for Sea Fisheries (1989) 168 CLR 314 .... 3.19, 8.31

Cases Harris v Flower (1904) 74 LJ Ch 127 .... 14.39, 14.40 — v Smith [2008] NSWSC 454 .... 11.37 Harrison v Foreman (1800) 5 Ves 207 .... 17.15 — v Melhem (2008) 72 NSWLR 380; [2008] NSWCA 67 .... 3.14 Harvard Nominees Pty Ltd v Tiller (No 2) [2020] FCA 604 .... 7.33 Harvey v Edwards, Dunlop & Co Ltd (1927) 39 CLR 302 .... 16.27 Haslam v Money for Living (Aust) Pty Ltd (2008) 172 FCR 301; 250 ALR 419 .... 7.11, 7.16 Hatala v Graglee Pastoral Company Pty Ltd [2017] NSWSC 155 .... 16.28 Hatton v Finch (1841) 4 Beav 186 .... 17.15 Hawkesley v May [1956] 1 QB 304 .... 17.56 Hawkesbury Valley Developments Pty Ltd v Custom Credit Corporation Ltd (1995) NSW ConvR 55-731 .... 16.43 Hays v De Atley (1923) 212 P 296 .... 4.10 Hayward v Giordani (1983) NZLR 140 .... 9.26 Haywood v Brunswick Permanent Benefit Building Society (1881) 8 QBD 403 .... 15.21 HE Dibble Ltd v Moore [1970] 2 QB 181 .... 3.2 Heath v Allen (1875) 1 VR 176 .... 3.28 — v Pugh (1881) 6 QBD 345 .... 16.48 Heathe v Heathe (1740) 2 Atk 121 .... 17.15 Hedley v Roberts [1977] VR 282 .... 17.46, 17.47, 17.48 Heid v Connell Investments Pty Ltd (1987) 9 NSWLR 628 .... 11.74 Heid v Reliance Finance Corporation Pty Ltd (1983) 154 CLR 326; 49 ALR 229 .... 10.24, 10.25, 13.13, 13.14, 13.15, 13.20, 13.23, 13.24, 13.26, 13.27, 16.31 Helimount Pty Ltd (in liq) v Web Wealth Pty Ltd [2007] FCA 1936 .... 16.28, 16.32 Heller v Niagara Racing Association (1925) 2 DLR 286 .... 1.12



Henderson v Eason (1851) 17 QB 701; 117 ER 1451 .... 17.42 — v Squire [1868] LR 4 QB 170 .... 7.26 Henderson’s Conveyance, Re [1940] Ch 835 .... 15.47 Henningson v Nolan [2004] SASC 105 .... 7.30 Henry Berry & Co Pty Ltd v Rushton [1937] SR (Qld) 109 .... 2.17 Henry Roach (Petroleum) Pty Ltd v Credit House (Vic) Pty Ltd [1976] VR 309 .... 16.41, 16.42 Hepworth v Hepworth (1963) 110 CLR 309; [1963] HCA 49 .... 9.26, 9.28 Heslop v Burns [1974] 3 All ER 406; [1974] 1 WLR 1241 .... 7.6 Hewett, Re [1894] 1 Ch 362 .... 17.62 Hewett v Court (1983) 149 CLR 639 .... 9.24, 10.18 Heywood v Mallalieu (1883) 25 Ch D 357 .... 14.12 — v Skinner & Ors [1981] 1 NSWLR 590 .... 17.42 HG & R Nominees Pty Ltd v Fava [1997] 2 VR 368 .... 11.32, 11.46 Higgins v Australian Capital Territory [2020] ACTSC 19 .... 7.24, 15.39 Higgs v Nassauvian Ltd [1975] AC 464 .... 4.9 Highway Properties Ltd v Kelly, Douglas & Co Ltd (1971) 17 DLR (3d) 710 .... 7.37 Hill v Hall (1876) LR 1 Ex D 411 .... 11.56 — v Hill [2005] NSWSC 863 .... 9.29 — v — [2013] NSWSC 524 .... 17.8 — v Tupper (1863) 2 H & C 121; [1861– 1873] All ER Rep 696 .... 14.8 Hillman v Dissanayake (2008) V ConvR 54751 .... 15.48 Hillpalm Pty Ltd v Heavens Door Pty Ltd (2004) 220 CLR 472; 211 ALR 588; [2004] HCA 59 .... 11.54, 11.55, 11.57, 11.58, 13.17 Hilltop Planners Pty Ltd v Great Lakes Council [2003] NSWLEC 214 .... 5.16 Hine v Hine [1962] 3 All ER 345; [1962] 1 WLR 1124 .... 17.30 xlv



Australian Property Law

Hinkley v Star City Pty Ltd [2011] NSWSC 1389 .... 1.13 Hircock v Windsor Homes (Development No 3) Pty Ltd [1979] 1 NSWLR 501 .... 17.18, 17.19, 17.21 Hirst v Tolson (1850) 2 Mac and G 134 .... 9.26 HL (Qld) Pty Ltd v Jobera Pty Ltd [2009] SASC 165 .... 11.22 Hobson v Gorringe [1897] 1 Ch 182 .... 3.2 Hogan v Baseden (1997) 8 BPR 15,723 .... 17.73 Hoh v Ying Mui Pty Ltd [2019] VSCA 203 .... 11.24 Holland v Hodgson (1872) LR 7 CP 328 .... 3.1, 3.2, 3.14 Holohan v Friends Provident and Century Life Office (1966) IR 1 .... 16.41, 16.46 Homebush Abattoir Corporation v Bermira Pty Ltd (1991) NSW ConvR 55-579 .... 7.21 Hongkong Fir Shipping Co Ltd v Kawasaki Kisen Kaisha [1962] 2 QB 26 .... 7.38 Hoon v Westpoint Management [2011] WASC 239 .... 9.37 Hooper v Lane (1859) 6 HL Cas 443; 10 ER 1368 .... 10.28 Hopkinson v Rolt (1861) 11 ER 829 .... 10.20 Hopper v Corporation of Liverpool (1944) 88 Sol Jo 213 .... 6.12 Horn v Chipperfield [2019] EWHC 537 .... 17.31 Horsey Estate Ltd v Steiger [1899] 2 QB 79 .... 7.35 Horsfall v Braye (1908) 7 CLR 629; [1908] HCA 85 .... 14.26 Horton v Westminster Commissioners [1852] 7 Ex 780 .... 14.29 Horvath v Commonwealth Bank of Australia [1999] 1 VR 643; [1999] 1 VR 643 .... 11.51, 11.52, 11.53, 11.56, 11.57, 11.58 Hosking v Haas (No 2) (2010) NSW ConvR 56-253 .... 15.22, 15.32, 15.37, 15.41, 15.43 Hough v Taylor (1927) 29 WALR 97 .... 4.10 xlvi

Houldsworth v City of Glasgow Bank (1880) 5 AppCas 317 .... 10.28 Howell v Bradford 570 So 2d 643 (1990) .... 17.36 — v District Land Registrar (1908) 27 NZLR 1074 .... 11.50 HSBC Rail (UK) Ltd v Network Rail Infrastructure Ltd [2006] 1 All ER (Comm) 345 .... 2.16 Hubbs v Black (1918) 46 DLR 583; 44 O LR 545 .... 1.12 Hudson v Arap 1 NSW Pty Ltd (2015) 90 NSWLR 477 .... 16.11 Hulme v Schaecken [1999] NSWSC 1291 .... 17.64, 17.65, 17.66 Hume v Perpetual Trustees Executors and Agency Co of Tasmania Ltd (1939) 62 CLR 242 .... 5.15 Hunt v Luck [1902] 1 Ch 428 .... 10.18 Hunter v Canary Wharf Ltd [1997] AC 655 .... 14.36 — v Walters (1871) 7 Ch App 75 .... 9.39 Huntingford v Hobbs [1993] 1 FCR 45 .... 17.30 Hurst v Picture Theatres Ltd [1915] 1 KB 1 .... 1.12, 1.13 Hussey v Palmer [1972] 3 All ER 744; [1972] 1 WLR 1286 .... 9.26, 9.28 Hutton v Hamboro (1860) 2 F & F 218 .... 14.43 — v Watling [1948] Ch 26 .... 6.13 Hycenko v Hrycenko & Hrycenko [2016] VSC 247 .... 17.16, 17.64 Hyde v Graham (1862) 1 H & C 583; 158 ER 1020 .... 1.12 Hyman v Van Den Bergh [1908] 1 Ch 167 .... 14.9 Hypec Electronics v Registrar-General [2008] NSWSC 18 .... 11.47 I

IAC (Finance) Pty Ltd v Courtenay (1963) 110 CLR 550 .... 11.42, 11.46, 13.14, 13.16, 13.20, 13.21, 13.22, 13.23, 13.27

Cases ICM Agriculture v Commonwealth (2009) 240 CLR 140 .... 3.21 Idewu Inasa v Oshodi (1934) AC 99 ….8.6 IGA Distribution Pty Ltd v King & Taylor Pty Ltd [2002] VSC 440 .... 10.18, 13.25 Imobilari Pty Ltd v Opes Prime Stockbroking Ltd (2008) 252 ALR 41 .... 9.29 Impact Funds Management v Roy Morgan Research Ltd [2016] VSC 221 .... 7.38 ING Bank Australia Ltd v O’Shea [2010] NSWCA 71 .... 9.37, 14.23 Inglis v Commonwealth Trading Bank of Australia (1972) 126 CLR 161 .... 16.47 Ingram v Ingram (1941) VLR 95 .... 9.21 International Drilling Fluids v Louisville Investments (Uxbridge) Ltd [1986] Ch 513 .... 7.31 International News Service v Associated Press 248 US 215; 63 L Ed 211 (1918) .... 1.27 International Tea Stores Company v Hobbs [1903] 2 Ch 165 .... 14.11, 14.29 Investec Bank Australia Ltd v Glodale Pty Ltd (2009) 24 VR 617 .... 16.48 Irving v National Provincial Bank [1962] 2 QB 73 .... 2.17 Isaac v Hotel de Paris Ltd [1960] 1 All ER 348; [1960] 1 WLR 239 .... 7.6 Isenberg v East India House Estate Co Ltd (1863) 3 De GJ & S 263; 46 ER 637 .... 2.23 Isherwood v Butler Pollnow Pty Ltd (1986) 6 NSWLR 363 .... 3.14 Isin v Ozen [2017] NSWCA 316 .... 5.13 ISPT Nominees Pty Ltd v Chief Commissioner of State Revenue (2003) 53 ATR 527; [2003] NSWSC 697; .... 11.56 Ives v Brown [1919] 2 Ch 314 .... 15.31 J

J & D Rigging Pty Ltd v Agripower Australia Ltd [2013] QCA 406 .... 3.3, 3.14 J & H Just (Holdings) Pty Ltd v Bank of New South Wales (1971) 125 CLR 546 .... 10.24, 11.13, 13.10, 13.14, 13.16, 13.17, 13.19, 13.20, 13.23, 13.24, 13.27



J & S Holdings Pty Ltd v NRMA Insurance Ltd (1982) 61 FLR 108 .... 9.26 J and T Lonsdale v P Gilbert [2006] NSWLEC 30 .... 3.30 J C Williamson Ltd v Lukey and Mulholland (1931) 45 CLR 282; [1931] VLR 221; [1931] ALR 157 .... 9.15 J Lyons & Sons v Wilkins [1899] 1 Ch 255 .... 1.27 J N Hipwell & Son v Szurek [2018] EWCA Civ 674 .... 7.27 J Wright Enterprises Pty Ltd (in liq) v Port Pallidu Pty Ltd [2010] QSC 213 .... 11.24 JA Pye (Oxford) Ltd v Graham [2003] 1 AC 419 .... 4.7, 4.9, 4.10, 4.11, 4.13, 4.14, 4.15, 4.16, 4.18 — v United Kingdom [2007] ECHR 559 .... 4.4, 4.6, 4.15 Jabbour v Sherwood [2003] FCA 529 .... 9.29 Jackson, Ex parte; Re Australasian Catholic Assurance Co Ltd (1941) 41 SR (NSW) 285 .... 16.15 Jacobs v Platt Nominees [1990] VR 146 .... 13.16, 13.20, 13.24, 13.25, 13.27, 13.29 — v Seward (1872) LR 5 HL 464 .... 17.33, 17.35, 17.36, 17.42, 17.47 Jager v Jager 136 NJ Eq 379; 42 A 2d 201 (1945) .... 17.36 Jaggard v Sawyer [1995] 1 WLR 269 .... 2.23 Jain v Amit Laundry Pty Ltd [2019] NSWCA 20 .... 9.21 Jam Factory v Sunny Paradise [1989] VR 584 .... 7.37 Jamaica Mutual Life Assurance Society v Hillsborough Ltd [1989] 1 WLR 1101 .... 15.38 James v Registrar-General (1967) 69 SR (NSW) 361 .... 11.78, 14.4 — v Seltsam Pty Ltd [2017] VSC 506 .... 1.29 — v Stevenson (1893) AC 162 .... 14.29 — v UK [1986] ECHR 8793/79 .... 4.4, 4.15 James Baird Co v Gimbel Bros Inc (1933) 64 F 2d 344 .... 11.22 James Boyd Lockrey v Fussell (2019) 19 BPR 39,853 .... 17.47 xlvii



Australian Property Law

James Hardie & Co Pty Ltd v Seltsam Pty Ltd (1998) 196 CLR 53; [1998] HCA 78 .... 3.14 Jango v Northern Territory of Australia (2007) 240 ALR 432; [2007] FCAFC 101 .... 8.29, 11.14 Jared v Clements [1903] 1 Ch 428 .... 10.18 Javid v Aqil [1991] 1 WLR 1007 .... 7.2 JB Northbridge Pty Ltd v Winners Circle Group Pty Ltd [2014] NSWSC 950 .... 7.31 JC Williamson Ltd v Lukey and Mulholland [1931] ALR 157 .... 1.2 JDM Investments Pty Ltd v Todburn Pty Ltd [2000] NSWSC 349 .... 7.31 Jea Holdings Australia Pty Ltd v RegistrarGeneral [2013] NSWSC 587 .... 14.8 Jeffereys v Small (1683) 1 Vern 217; 23 ER 424 .... 17.24 Jeffrey v Anderson [1914] QSR 66 .... 9.11 Jeffries v The Great Western Railway Co [1856] EngR 81; [1856] 119 ER 680 .... 2.17 Jenkins v Wynen [1992] 1 Qd R 40 .... 9.21 Jennings v Rice [2003] 1 P & CR 8 .... 7.16 — v Ward (1705) 2 Vern 520; 23 ER 935 .... 16.8 Jervey v Jervey [2014] FamCA 561 .... 17.37 Jewish National Fund of Australia Ltd v Bar-Mordecai [2020] NSWSC 384 .... 17.57 JLCS Pty Ltd v Loft City Steakhouse Pty Ltd [2008] FCA 867 .... 14.25 Jobson v Nankervis (1943) 44 SR (NSW) 277; 61 WN (NSW) 76 .... 14.30 John Alexander’s Clubs Pty Ltd v White City Tennis Club Ltd (2010) 241 CLR 1 .... 11.22 John Nitschke Nominees Pty Ltd v Hahndorf Golf Club Inc [2003] SASC 286 .... 6.7 — v Hahndorf Golf Club Inc [2004] SASC 128 .... 6.3 John Street Marina Pty Ltd v Minister for Transport [2005] WASC 171 .... 13.7 Johnson v McIntosh (70) (1823) 8 wheat 21 US .... 8.4, 8.6 — v Wyatt (1863) 2 De GJ & S 18 .... 1.27 Jones, Re [1893] 2 Ch 461 .... 17.42 xlviii

Jones v Bartlett (2000) 75 ALJR 1 .... 7.22, 7.23 — v Brown (1856) 25 LJ (Ex) 345 .... 17.42 — v Earl of Tankerville [1909] 2 Ch 440 .... 1.12 — v Jones [1997] 1 WLR 438 .... 17.33, 17.36 — v Kernott [2011] 3 WLR 1121 .... 9.21, 17.31 — v Maynard [1951] 1 All ER 802; [1951] Ch 572 .... 17.30 — v Morgan [2001] EWCA Civ 995 .... 16.8 — v Sherwood Hills Pty Ltd (1975) 52 ALJ 223 .... 15.46 — v State of Queensland [2000] QSC 267 .... 2.12 Jonray (Sydney) Pty Ltd v Partridge Bros Pty Ltd (1969) 89 WN (Pt 1) (NSW) 568 .... 13.20, 13.22 Jonsue Investments Pty Ltd v Balweb Pty Ltd [2013] NSWSC 325 .... 10.27 Josephson v Mason (1912) 12 SR (NSW) 249 .... 13.2 Jovanovic v Commonwealth Bank of Australia (2004) 87 SASR 570; [2004] SASC 61 .... 16.42 Julong Pty Ltd v Fenn (2003) Q ConvR 54-586 .... 16.37 K

Kakavas v Crown Melbourne Ltd (2013) 250 CLR 392 .... 10.18 Karpany v Dietman (2013) 303 ALR 216 .... 8.32 Kay v London Borough of Lambeth [2006] 2 WLR 570 .... 7.7 Kay’s Leasing Corporation Pty Ltd v CSR Provident Fund Nominees Pty Ltd [1962] VicRp 62; [1962] VR 429 .... 3.9, 3.14 Keberwar Pty Ltd v Harkin (1987) 9 NSWLR 738 .... 14.25 Keefe v Amor [1965] 1 QB 334 .... 14.43 Keewatin Power Co Ltd v Lake of the Woods Milling Co Ltd [1930] AC 640 .... 14.45 Keitley, Re [1992] 1 VR 583 .... 17.70

Cases Kelly, Re; Cleary v Dillon [1932] IR 255 .... 6.22 Kelly v John Fairfax & Sons Ltd (1982) 1 NSWLR 466 .... 13.14, 13.27 Kelsen v Imperial Tobacco Co (Great Britain & Ireland) [1957] 2 QB 334 .... 3.30 Kemp v Public Curator of Queensland [1969] Qd R 145 .... 17.8 Kemppi v Adani Mining Pty Ltd [No 4], [2018] FCA 1245 .... 8.46 Kennedy v de Trafford (1896) 1 Ch 762 .... 16.41 — v — [1897] AC 180 .... 9.40, 16.41, 16.42 Kenworthy v Ward (1853) 11 Hare 196; 68 ER 1245 .... 17.6, 17.56 Keppell v Bailey (1834) 2 My & K 517 .... 1.12, 15.7 Kerabee Park Pty Ltd v Daley [1978] 2 NSWLR 222 .... 13.12 Kern Corporation Ltd v Walter Reid Trading Pty Ltd (1987) 163 CLR 164; 71 ALR 417 .... 9.35, 9.36 Kernott v Jones [2010] 3 All ER 423 .... 17.31 Kerrison v Smith [1897] 2 QB 445 .... 1.12 Kettlewell v Watson (1882) 21 Ch D 685 .... 10.21 Khattar v Wiese (2005) 12 BPR 23,235 .... 14.23 Khoury v Khouri (2006) 66 NSWLR 241; [2006] NSWCA 184 .... 9.11, 9.14 Kiama Development Co Pty Ltd v Wilcox [1999] NSWSC 277 .... 7.39 Kidson (Inspector of Taxes) v Macdonald [1974] 1 All ER 849 .... 17.19 Kierford Ridge Pty Ltd v Ward [2005] VSC 215 .... 4.20 Kinara Trustee Ltd v Infinity Enterprises NZ Ltd [2019] NZHC 1526 .... 14.27 King v AGC (Advances) Ltd [1983] 1 VR 682 .... 10.25, 13.20, 13.24, 13.27 — v King (1931) 2 Ch 294 .... 13.14 King Investment Solutions Pty Ltd v Hussain (2005) 64 NSWLR 441; (2006) ANZ ConvR 48 .... 16.39, 16.48, 16.49



King v Smail [1958] VR 273 .... 11.39, 11.40, 11.41, 11.42, 11.43, 11.44, 11.45, 11.47, 11.48 Kingsnorth Finance Ltd v Tizard [1986] 2 All ER 54 .... 10.18 Kingswood Estate v Anderson [1963] 2 QB 169 .... 9.14 Kirby v Cowderoy [1912] AC 599 .... 4.9 Kitching v Phillips [2009] WASC 396 .... 14.33 — v — [2011] WASCA 19 .... 14.25, 14.38 Knight’s Case (1588) 5 Co Rep 54b .... 7.37 Kogarah v Golden Paradise [2005] NSWCA 230 .... 11.55, 11.57, 11.58 Kondis v State Transport Authority .... 7.22 Koompahtoo Local Aboriginal Land Council v KLALC Property Investment Pty Ltd [2008] NSWCA 6 .... 11.57 — v Sanpine Pty Ltd (2007) 82 ALJR 345 .... 7.38 Korda v Australian Executor Trustees (SA) Ltd (2015) 255 CLR 62 .... 9.3 Kravchenko v The Rock Building Society (2009) 26 VR 400 .... 16.43 Kreglinger v New Patagonia Meat and Cold Storage Company Ltd [1914] AC 25 .... 16.4, 16.9 Kumar v Dunning [1987] 3 WLR 1167 .... 7.34 Kuper v Keywest Constructions Pty Ltd (1990) 3 WAR 419 .... 13.10 Kutner v Phillips [1891] 2 QB 267 .... 11.52 KY Enterprises Pty Ltd v Darby [2013] VSC 484 .... 4.9, 4.10, 4.16, 4.21 L

Lace v Chantler [1944] 1 All ER 305 .... 7.11 Lacey v Attorney-General (Qld) .... 8.31 Lake v Craddock (1732) 3 P Wms 158; 24 ER 1011 .... 17.24, 17.27 — v Gibson (1729) 1 Eq Rep 290; 21 ER 1052 .... 17.24 — Macquarie City Council v Luka (1999) 9 BPR 17,481 .... 14.30 xlix



Australian Property Law

Lambert Property Group Pty Ltd v Body Corporate for Castlebar Cove [2015] QSC 179 .... 14.23 Lambeth London Borough Council v Bigden (2001) 33 HLR 43 .... 4.19 — v Blackburn (2001) 82 P & CR 494 .... 4.9, 4.14 Laming v Jennings [2017] VCC 1223 .... 4.11 — v — [2018] VSCA 335 .... 14.13, 14.35, 14.36 Land Tax Act, In re the; Ex parte Finlay (1884) 10 VLR (E) 68 .... 11.42 Lane v Pannel (1615) 1 Roll Rep 238 .... 17.62 Langdale Pty Ltd v Sollas [1959] VR 634; [1959] ALR 1150 .... 15.42 Lange v Ruwoldt (1872) 7 SALR 1 .... 13.2 Lansen v Olney (1999) 169 ALR 49 .... 5.6, 11.60 Lanyon Pty Ltd v Canberra Washed Sands Pty Ltd (1966) 115 CLR 342 .... 3.20 Lapin v Abigail (1930) 44 CLR 166 .... 10.24, 10.28, 11.13, 13.14, 13.17, 13.19, 13.21, 13.24, 13.27 Laris v Lin (No 2) (2016) 18 BPR 35,917 .... 14.44, 14.47 Lashmar, Re; Moody v Penfold [1891] 1 Ch 258 .... 17.56 Latec Investments Ltd v Hotel Terrigal Pty Ltd (in liq) (1965) 113 CLR 265; [1965] HCA 17 .... 9.39, 9.40, 9.41, 10.28, 10.29, 11.21, 11.23, 13.7, 13.14, 13.27, 16.43, 16.46, 16.47 Laurinda Pty Ltd v Capalaba Park Shopping Centre Pty Ltd (1989) 166 CLR 623 .... 7.37 Law Mortgagees Queensland Pty Ltd v Thirteenth Corp Pty Ltd [1999] VSC 360 .... 13.7 Lawledge v Tyndall [1896] 1 Ch 923 .... 17.42 Lawrence v South County Freeholds Ltd [1939] Ch 656 .... 15.39, 15.43 Lawson v Minister for Environment and Water [2020] NSWSC 186 .... 8.29 — v South Australian Minister for Water and the River Murray [No 2] [2014] NSWLEC 189 .... 2.12 l

Laybutt v Amoco Australia Pty Ltd (1974) 132 CLR 57 .... 10.28 Leake v Loveday (1942) 4 Man & G 972; 133 ER 399; [1842] EngR 1063 .... 2.17 Leaver, Re [1997] 1 Qd R 55 .... 17.16 Leda Commercial Properties Pty Ltd v DHK Retailers Pty Ltd (1992) 111 FLR 81 .... 7.37 Lee v Ross (No 2) (2003) 11 BPR 20,991 .... 13.7 Legal Services Board v Gillespie-Jones [2012] VSCA 68 .... 9.19 — v — (2013) 249 CLR 493 .... 9.3 Legal Services Commissioner v Brereton [2011] VSCA 241 .... 9.19 Legione v Hateley (1983) 152 CLR 406; 46 ALR 1; 57 ALJR 292 .... 7.17, 9.26, 9.36, 13.24 Legum Furniture Corporation v Levine (1977) 232 S E 2d 782 .... 9.26 Lehmann v Haskard [1997] NSWSC 22 .... 6.19 Lehrer and the Real Property Act, Re (1960) 61 SR (NSW) 365 .... 11.56 Leigh v Dickeson (1884) 15 QBD 60 .... 17.39, 17.42, 17.44 — v Jack (1879) 5 Ex D 264 .... 4.14, 4.15, 4.16 — v Taylor [1902] AC 157 .... 3.2, 3.6 Leightons Investment Trust Ltd v Cricklewood Property and Investment Trust Ltd (1943) KB 493; AC 221 .... 7.37 Leros Pty Ltd v Terara Pty Ltd (1992) 174 CLR 407; [1992] HCA 22 .... 11.14, 11.52, 11.56, 13.6, 13.10, 13.11, 13.23 LHK Nominees Pty Ltd v Kenworthy [2002] 26 WAR 517; [2002] WASCA 291 .... 11.34, 11.35, 11.37, 11.38 Li Sau Sing v CTMA Holdings Ltd [2015] HKDC 1148 .... 4.11 Lickbarrow v Mason (1787) 2 TR 63; 100 ER 35 .... 13.14 Lictor Anstaldt v MIR Steel UK Ltd [2014] EWHC 3316 .... 3.5, 3.7

Cases Life Interest and Reversionary Securities Corporation v Hand-in-Hand Fire and Life Insurance Society (1898) 2 Ch 230 .... 16.46 Lift Capital Partners Pty Ltd v Merrill Lynch International (2009) 253 ALR 482 .... 16.6, 16.8, 16.10 Lighting by Design (Australia) Pty Ltd v Cannington Nominees Pty Ltd [2008] 35 WAR 520 .... 7.15, 9.14 Linden Gardens Ltd v Lenesta Sludge Disposals Ltd [1994] 1 AC 85 .... 6.3 Link Lending Ltd v Susan Bustard [2010] EWCA Civ 424 .... 10.18 Little v Dardier (1891) 12 NSWLR (Eq) 319 .... 14.29 Littledale v Liverpool College [1900] 1 Ch 19 .... 4.14 Liv v Hanson Property Developments [2016] NSWSC 1870 .... 16.32 Liverpool City Council v Irwin [1977] AC 239 .... 7.27 Living and Leisure Australia Ltd (ACN 107 863 445) v Commissioner of State Revenue [2018] VSCA 237 .... 7.7 Lloyds Bank plc v Rosset [1988] 3 WLR 1301 .... 10.18 — v — [1991] 1 AC 107; [1990] 1 All ER 1111 .... 17.30 Lo Pilato (Trustee) v Kamy Saeedi Lawyers Pty Ltd, in the matter of Adzic (Bankrupt) (2017) 346 ALR 459 .... 17.68 Logue v Shoalhaven Shire Council (1979) 1 NSWLR 537 .... 11.21, 11.30, 11.56, 14.26 Loiero (aka Lero) v Adel Sportswear Pty Ltd [2010] NSWSC 113 .... 3.2 Loke Yew v Port Swettenham Rubber Co [1913] AC 491 .... 11.19, 11.20, 11.21, 11.30 Lolakis v Konitsas [2002] NSWCA 889 .... 14.47 London Borough of Bromley v Morritt [1999] EWCA Civ 1631 .... 4.7 London Celluloid Company, Re (1888) 39 Ch D 190 .... 10.28 London County Council v Allen [1914] 3 KB 642 .... 15.23, 15.31



London & Northern Estates Co v Schlesinger (1916) 1 KB 20 .... 7.37 London & South Western Railway Company v Gomm (1882) 20 Ch D 562 .... 15.19, 15.21 Lonergan v Lewis [2011] NSWSC 1133 .... 14.23 Long v Michie [2003] NSWSC 233 .... 14.44, 14.46 Lontav Pty Ltd v Pineross Custodial Services [2011] VSC 278 .... 7.37 Loose v Lynn Shellfish Ltd [2017] AC 599 .... 3.24 Loosefit Pty Ltd v Marshbaum [2011] NSWCA 372 .... 7.23 Lord Abergavenny’s Case (1607) 6 Co Rep 786; 77 ER 373 .... 17.47 Lord Chesterfield’s Settled Estates [1911] 1 Ch 237 .... 3.6 Lord Northbourne v Johnston & Son [1922] 2 Ch 309 .... 15.31 Louis and the Conveyancing Act, Re [1971] 1 NSWLR 164 .... 15.32, 15.41, 15.43 Louth v Diprose (1992) 175 CLR 621; [1992] HCA 61 .... 16.8 Love v Commonwealth of Australia; Thoms v Commonwealth of Australia [2020] HCA 3 .... 5.8 Low v Bouverie (1891) 3 Ch 82 .... 7.17, 14.29 Lowe v Adams [1901] 2 Ch 598 .... 1.12 — v Kladis [2018] NSWCA 130 .... 14.40 LPJ Investments Pty Ltd v Howard Chia Investments Pty Ltd (No 2) (1989) 24 NSWLR 490 .... 3.30 LTDC Pty Ltd v Cashflow Finance Australia Pty Ltd [2019] NSWSC 150 .... 10.25, 13.15, 13.20 Lukass Investments Pty Ltd v Makaroff (1964) 82 WN (Pt 1) (NSW) 226 .... 16.46 Luke v Luke (1936) 36 SR (NSW) 310; 53 WN (NSW) 101 .... 17.34, 17.35, 17.36, 17.42 Lumley v Wagner (1852) 1 De GM & G 604; 42 ER 687 .... 1.12, 15.19, 15.23 li



Australian Property Law

Lynn Shellfish Ltd v Loose [2016] 2 WLR 1126 .... 3.24 Lynne Anne Luxton, The Estate of [2006] SASC 371 .... 17.8 Lyon v Tweddell (1881) 17 Ch D 529 .... 9.26, 9.28 Lyons v Lyons [1967] VR 169 .... 17.15, 17.47, 17.50, 17.56, 17.61, 17.62, 17.63 Lyons & Sons v Wilkins [1899] 1 Ch 255 .... 1.27 Lysaght v Edwards (1876) 2 Ch D 499 .... 9.34, 9.35, 9.36, 9.37 Lyttleton Times Co Ltd v Warners Ltd [1907) AC 476 .... 14.29, 14.33 Lyus v Prowsa Developments Ltd; Binions v Evans (1972) Ch 359 .... 11.30 M

Mabo v Queensland (No 1) (1988) 166 CLR 186 .... 8.3, 8.7, 8.9, 8.21, 8.27, 8.31 — v — (No 2) (1992) 175 CLR 1; [1992] HCA 23 .... 2.11, 2.12, 2.13, 5.6, 5.8, 5.9, 6.1, 8.2, 8.3, 8.4, 8.5, 8.6, 8.7, 8.8, 8.10, 8.11, 8.12, 8.14, 8.16, 8.21, 8.22, 8.23, 8.27, 8.28, 8.29, 8.30, 8.31, 8.36, 8.37 MacGreal v Taylor 167 US 688 (1897) .... 11.52 Mackreth v Marlar (1786) 1 Cox 259; 29 ER 1156 .... 9.36 — v Symmons (1808) 15 Ves Jun 329; 33 ER 778 .... 10.23, 13.27 Macmillan Inc v Bishopsgate Investment Trust plc (No 3) [1995] 3 All ER 747; [1995] 1 WLR 978 .... 10.13, 10.18 Macquarie Bank v Sixty-Fourth Throne [1998] 3 VR 133 .... 11.23, 11.24, 11.32, 11.33, 11.34, 11.35, 11.36, 11.37, 11.48 MacTiernan, Re; Ex parte Coogee Coastal Action Coalition Inc (2005) 30 WAR 138 .... 3.19 Madden v Official Trustee in Bankruptcy (2014) 221 FCR 344 .... 17.25 Maddison v Alderson (1883) 8 App Cas 467 .... 9.14, 9.15 Mahendran v Chase Enterprises Pty Ltd (2013) 17 BPR 32,733 .... 13.7 lii

Maio v City of Sterling (No 2) [2015] WASC 189 .... 14.8 Malayan Credit Ltd v Jack Chia-MPH Ltd [1986] AC 549; [1986] 1 All ER 711; [1986] 1 WLR 590 .... 9.22, 17.22, 17.24, 17.28, 17.29, 17.30, 17.31, 17.32 Malden v Menill (1737) 2 Atk 8 .... 9.40 Malika Holdings Pty Ltd v Stretton (2001) 204 CLR 290 .... 15.47 Mallet v Mallet (1984) 156 CLR 605 .... 17.42 Malter v Procopets [2000] VSCA 11 .... 4.13 Manado on Behalf of the Bindanbur Native Title Group v State of Western Australia [2018] FCAFC 238 .... 3.19 Mancetter Developments Ltd v Garmanson [1986] QB 1212 .... 3.8 Manchester Bonded Warehouse Co Ltd v Carr (1880) 5 CPD 507 .... 5.13 Manchester Brewery Co v Coombs [1901] 2 Ch 608 .... 7.33 Manchester Ship Canal Co v Manchester Racecourse Co [1901] 2 Ch 37 .... 15.19 Manjang v Drammeh (1990) 61 P & CR 194 .... 14.20 Mann v Paterson Constructions Pty Ltd (2019) 373 ALR 1 .... 7.38 — v Stephens (1846) 15 Sim 377; 10 Jur 650; 60 ER 665; 40 Digest (Repl) 344 .... 15.17 Mansfield v Mansfield (1890) 16 VLR 569 .... 17.62 Mantec Thoroughbreds Pty Ltd v Batur [2009] VSC 351 .... 14.23 Manton v Parabolic Pty Ltd (1985) 2 NSWLR 361 .... 10.3, 10.4, 10.5 Maralinga Pty Ltd v Major Enterprises Pty Ltd (1973) 128 CLR 336; [1973] HCA 23 .... 11.67, 14.26 Marchant v Charters [1977] 3 All ER 918; [1977] 1 WLR 1181 .... 7.6 Marcroft Wagons Ltd v Smith [1951] 2 All ER 271; [1951] 2 KB 496 .... 7.6 Marian Walker v Brian Bridgewood [2006] NSWSC 149 .... 14.44 Marina Blue Pty Ltd v Gear (No 2) [2018] NSWSC 1442 .... 4.23

Cases Maronis Holdings Ltd v Nippon Credit Australia Pty Ltd [2001] NSWSC 448 .... 10.18 Marquess of Northhampton v Pollock (1890) 45 Ch D 190 .... 16.2 Marquess of Zetland v Driver [1939] Ch 1 .... 15.19, 15.25 Marquis Cholmondeley v Lord Clinton (1820) 2 Jac & W 1; 37 ER 527 .... 4.4, 4.6 Marriner v Australian Super Developments Pty Ltd [2012] VSCA 171 .... 9.19 Marriott, Re [1968] VR 260 .... 14.44 Marsden v Edward Heyes Ltd [1927] 2 KB 7 .... 7.25 Marsh v Lee [1726] EngR 573; [1726] 86 ER 473 .... 10.20 Marshall v Allsop [1946] ALR 378 .... 16.8 — v Director-General, Department of Transport (2001) 205 CLR 603; [2001] HCA 37 .... 3.14 — v Green (1875) 1 CPD 35 .... 14.3 Marten v Flight Refuelling Ltd [1962] Ch 115 .... 15.23, 15.26, 15.38 Martorella v Innovision Developments Pty Ltd [2011] VSC 282 .... 13.11, 13.12 Martyn, Re (1965) 65 SR (NSW) 387 .... 15.43 Mascall v Murray 149 P 517 (1915) .... 4.10 Mason v Clarke [1955] AC 778 .... 14.3 Massey v Boulden [2003] 1 WLR 1792 .... 14.47 Masters Home Improvement Aust Pty Ltd v Aventus Cranbourne Thompson Road Pty Ltd [2019] VSC 428 .... 7.31 Matcove Pty Ltd, In the matter of [2020] NSWSC 625 .... 16.9 Matsen v Matsen [2008] NSWSC 135 .... 6.7 Matthey v Curling (1922) 2 AC 180 .... 7.37 Matton v Lipscombe (1895) 16 LR (NSW) 142 .... 16.48 Matzner v Clyde Securities Ltd [1975] 2 NSWLR 293 .... 10.20 Maundrell v M [1834] 10 Ves 271 .... 10.23 Maurice Toltz Pty Ltd v Macey’s Emporium Pty Ltd [1970] NSWR 474 .... 14.12



Maviglia Investments Pty Ltd (as trustee for the Maviglia Family Trust) v BKSL Investments Pty Ltd (in liq) [2017] NSWSC 401 .... 16.47 May v Ceedive (2006) 13 BPR 24,147; [2006] NSWCA 369 .... 3.3, 3.5, 3.7 Maybury v Plowman (1913) 16 CLR 468 .... 11.52 Mayer v Coe (1968) 88 WN (Pt 1) (NSW) 549; [1968] 2 NSWR 747 .... 11.13, 11.32, 11.34, 11.36, 11.44, 11.67, 14.26, 14.39 Mayhew v Suttle (1854) 4 E & B 347; 119 ER 137 .... 7.6 Mazuchelli v Mazuchelli [2006] WASC 124 .... 15.20 MBF Investments v Nolan [2011] VSCA 114 .... 16.41, 16.43 McAuley v Bristol City Council [1992] QB 134 .... 7.27 McBride v Sandland (1918) 25 CLR 69 .... 9.14, 9.15 McCance v London and North-West Railway Co 3 H. & C. 343 .... 14.29 McConaghy v Denmark (1880) 4 SCR 609 .... 4.10 McCormick v McCormick [1921] NZLR 384 .... 17.42 McDonald v Dennys Lascelles Ltd (1933) 48 CLR 457 .... 7.37 McGlade v Native Title Register [2017] FCAFC 10 .... 8.46 McGrath v Campbell (2006) 68 NSWLR 229; [2006] NSW ConvR 56-159 .... 11.66, 11.67, 11.68, 11.79, 14.26, 14.27, 14.35 McHugh v Union Bank of Canada (1913) AC 299 .... 16.41 McKean’s Caveat, Re [1988] 1 Qd R 525 .... 13.7 McKeand v Thomas [2006] 12 BPR 98,201 .... 14.27 McKinnon v Smith, [1925] 4 DLR 262 .... 11.40 McLeod v McRae (1918) 43 DLR 350 .... 4.10 McMahon v Ambrose [1987] VR 817 .... 9.14 — v Burchell (1846) 5 Hare 322; 67 ER 936 .... 17.36, 17.42 liii



Australian Property Law

— v National Foods Milk Ltd (2009) 25 VR 251 .... 7.27 — v Public Curator (Qld) [1952] QSR 197 .... 17.42 McManus v Cooke (1887) 35 Ch D 681 .... 9.11 McNab v Earle [1981] 2 NSWLR 673 .... 17.56, 17.65 — v Graham (2017) 53 VR 31 .... 9.31 McNamara and the Conveyancing Act, Re (1961) 78 WN (NSW) 1068 .... 17.73 Meadow Springs Fairway Resort Ltd (In liq) v Balanced Securities Ltd (No 2) (2008) 245 ALR 726 .... 13.28 Medforth v Blake [2000] Ch 86 .... 16.41, 16.42, 16.48 Mediterranean Salvage and Towage Ltd v Seamar Trading and Commerce Inc [2010] 1 All ER .... 7.27 Meftah v TSB Bank plc [2001] 2 All ER (Comm 741) .... 16.41 Mekpine Pty Ltd v Moreton Bay Regional Council [2014] QCA 317 .... 11.14, 17.68 Melling v Leak (1855) 16 CB 652; 139 ER 915 .... 9.6 Mellor v Walmesley (1905) 2 Ch 164 .... 14.29 Melluish (Inspector of Taxes) v BMI (No 3) Ltd [1995] Ch 90 .... 3.9 — v — (No 3) Ltd [1996] AC 454 .... 3.2, 3.11 Members of the Yorta Yorta Aboriginal Community v Victoria (2002) 214 CLR 422; 77 ALJR 356; [2002] HCA 58 .... 1.8, 8.12, 8.13, 8.14, 8.15, 8.16, 8.17, 8.18 Menzies v MacDonald (1856) 2 Macq 463 .... 17.47 Mercantile Credits v Shell Co of Australia Ltd (1976) 136 CLR 326 .... 11.15, 11.16, 11.17, 13.10, 13.11, 14.40 Mercantile Credits Ltd v Australian & New Zealand Banking Group Ltd (1988) 48 SASR 407 .... 10.20 Mercantile Mutual Life Insurance Co Ltd v Gosper (1991) 25 NSWLR 32 .... 11.29, 11.32, 11.46, 11.67, 14.26 liv

Meriton Apartments Pty Ltd v Baulderstone Pty Ltd (unreported, SC (NSW), No 4940 of 1991) .... 3.30 — v McLaurin & Tait (Developments) Pty Ltd (1976) 133 CLR 671 .... 13.20, 13.22 Metal Manufactures Ltd v Federal Commissioner of Taxation [1999] FCA 1712 .... 3.9, 3.10, 3.11, 3.13 Metropolitan Housing Trust Ltd v RMC FH Co Ltd [2018] Ch 195 .... 14.36 Meux v Jacobs (1875) LR 7 HL 481 .... 3.11 Michael Senno v Natasha Bailey [2011] NSWSC 679 .... 17.37 Micklethwait v Newlay Bridge Co (1886) 33 Ch D 133 .... 3.20 Midland Bank plc v Cooke [1995] 4 All ER 562 .... 17.30 Midland Bank Trust Co Ltd v Green [1981] AC 513 .... 13.27 Midland Brick Co Pty Ltd v Welsh (2006) 32 WAR 287 .... 13.7, 15.14, 15.18, 15.20, 15.23, 15.25, 15.26, 15.27, 15.28 Midland Railway Company Agreement, Re v British Railways Board [1971] Ch 725 .... 7.11 Mijac Investments Pty Ltd v Graham (No 2) (2009) 72 ACSR 684 .... 16.43 Milbex Pty Ltd, Re (2007) V ConvR 54-726 .... 15.48 Milenkovic v Belleli [2015] VSC 349 .... 13.25, 13.28 Milirrpum v Nabalco Pty Ltd (1971) 17 FLR 141; [1972–3] ALR 65 .... 5.6, 8.1, 8.2, 8.14 Miller v Emcer Products Ltd [1956] Ch 304; [1956] 1 All ER 237 .... 14.12 — v Minister of Mines [1963] AC 484; [1963] 1 All ER 109; [1986] UKHL 1 .... 11.50, 11.56 Miller & Aldworth Ltd v Sharp [1899] 1 Ch 622 .... 9.14 Mills v Colchester Corporation (1867) LR 2 CP 476 .... 14.35 — v Silver [1991] 2 WLR 324 .... 14.35 — v Stockman (1967) 116 CLR 61 .... 11.21, 13.10

Cases Milmo v Carreras [1946] KB 306 .... 7.7 Milroy v Lord (1862) 4 De GF & J 264; 45 ER 1185 .... 17.56 Mimi v Millennium Developments Pty Ltd [2003] VSC 260 .... 13.20, 13.25 Minasian v Aetna Life Ins Co 3 NE (2d) 17 (1936) .... 17.8 Mine Subsidence Board v Frank and Louisa Kozak (2017) 51 WAR 304 .... 7.9 Minister for Natural Resources v New South Wales Aboriginal Land Council (1987) 9 NSWLR 154 .... 2.12 Mischel Holdings Pty Ltd (in liq) v Mischel [2013] VSCA 375 .... 13.3, 17.13, 17.18, 17.25 Missouri v Holland 252 US 416 (1920) .... 1.6, 8.19 Mitchell v Pattern Holdings Pty Ltd (2002) NSWCA 212 .... 10.28 Mitchelson v Mitchelson (unreported, King J, 13 November 1979) .... 13.24 Modular Design Group Pty Ltd, Re (1994) 35 NSWLR 96 .... 16.7, 16.8 Moffett v Dillon [1999] 2 VR 480 .... 13.13, 13.27, 13.28, 13.29 Mogul Steamship Co v McGregory, Gow & Co (1889) 23 QBD 598 .... 1.27 Mohammadzadeh v Joseph [2006] EWHC 1040 .... 15.25 Mole v Ross (1950) 1 BPR 9101 .... 17.18 Monash City Council v Melville [2000] VSC 55 .... 4.16 Moncrieff v Jamieson (2007) 1 WLR 2620 .... 14.3, 14.8, 14.14 Montagu’s Settlement Trusts, Re [1987] 2 WLR 1192 .... 10.18 Moody v Steggles (1879) 12 Ch D 261 .... 14.8 Mooloolaba Slipways Pty Ltd v Cashlaw Pty Ltd [2011] QSC 236 .... 7.2 Moongking Gee v Tahos (1963) 63 SR (NSW) 935 .... 11.1 Moore, Re (1888) 39 Ch D 116 .... 5.17 Moore v Dimond (1929) 43 CLR 105 .... 7.2



Moorebank Recyclers Pty Ltd v Liverpool City Council (No 2) (2012) 16 BPR 31,257 .... 14.23 — v Tanlane Pty Ltd [2012] NSWCA 445 .... 14.23 Moraitis Fresh Packaging (NSW) Pty Ltd v Fresh Express (Australia) Pty Ltd [2008] 14 BPR 26,339 .... 6.3 Moran case (1988) 86 LQR 472 .... 4.14 Morley v Bird (1798) 3 Ves 628 .... 17.15 Morris Finance Ltd v Free [2017] NSWSC 1417 .... 9.7 Morrison Jones & Taylor Ltd, Re [1914] 1 Ch 50 .... 3.9 Morton v Woods [1867] LR 4 QB 293 .... 7.16 Moses v Macferlan (1760) 2 Burr 1005 .... 9.26 Motel Marine Pty Ltd v IAC (Finance) Pty Ltd (1964) 110 CLR 9 .... 9.40 Mounsey v Ismay (1865) 3 H & C 486 .... 14.11 MRA Engineering Ltd v Trimster Co Ltd (1987) 56 P & CR 1 .... 14.19 Mulcahy v Curramore Pty Ltd [1974] 2 NSWLR 464 .... 4.9, 4.19, 4.21 Muller v Trafford [1901] 1 Ch 504 .... 11.16 Multi-Span Constructions No 1 Pty Ltd v 14 Portland Street Pty Ltd [2001] NSWSC 696 .... 13.12 Mulvaney v Jackson [2002] EWCA Civ 1078 .... 14.13 Munro v Southern Dairies Ltd [1955] VLR 332 .... 3.30 Murdoch and Barry, Re (1975) 64 DLR (3d) 222 .... 17.56 Murnane v Findlay [1926] VLR 80 .... 4.9, 4.16 Murphy v Overton Investments Pty Ltd (2004) 216 CLR 388 .... 2.14 — v Wright [1992] NSW Conv R 55-652 .... 13.7 Murray v Hall (1849) 7 CB 441 .... 17.52 Muschinski v Dodds (1985) 160 CLR 583; [1985] HCA 78 .... 9.2, 9.17, 9.26, 9.27, 9.28, 9.38, 16.8, 17.42 lv



Australian Property Law

Muthu Goundan v Anantha Goundan AIR [1916] Madras 1001 .... 4.10 Myers v Clark [2018] NSWSC 1029 .... 17.44 MYT Engineering Pty Ltd v Mulcon Pty Ltd (1999) 195 CLR 636 .... 10.3 N

N H Dunn Pty Ltd v LM Ericsson Pty Ltd (1979) 2 BPR 9241; [1980] ANZ ConvR 300 .... 3.5, 3.14 N Jobson and the Real Property Act 1900, Re (1951) 68 WN (NSW) 23 .... 11.78 Nabeth Taleb v National Australia Bank [2011] NSWSC 1562 .... 10.25 Naden, Ex parte; Wood, Re (1874) LR 9 Ch App 670 .... 5.17 Nai Pty Ltd v Hassoun Nominees Pty Ltd (1985) ANZ ConvR 349 .... 7.37 Nairn’s Application, Re [1961] VR 26 .... 16.28, 17.62 Nangus Pty Ltd & Anor v Charles Donovan Pty Ltd (in liquidation) & Anor [1989] VR 184 .... 7.37 Napier v Public Trustee WA (1980) 32 ALR 153 .... 9.17 National Australia Bank Ltd v Blacker (2000) 179 ALR 97 .... 3.1, 3.2, 3.14 — v Clowes [2013] NSWCA 179 .... 16.27 — v KDS Construction Services Pty Ltd (1987) 163 CLR 668 .... 13.27 National Bank of Australasia v United Hand-in-Hand and Band of Hope Co (1879) 4 App Cas 391 .... 17.62 National Carriers Ltd v Panalpina (Northern) Ltd [1981] AC 675 .... 7.7, 7.37, 7.39 National Dairies WA Ltd v Commissioner of State Revenue [1999] WASCA 152 .... 3.10 National Executors and Trustees Co of Tasmania v Edwards [1957] Tas SR 182 .... 14.5 National Outdoor Advertising Pty Ltd v Wavon Pty Ltd .... 7.8 National Provincial Bank Ltd v Ainsworth [1965] AC 1175; [1965] 2 All ER 472 .... 5.19, 9.39, 13.27, 14.10 lvi

— v Hastings Car Mart Ltd [1964] Ch 9 .... 9.40 National Trust for Places of Historic Interest or Natural Beauty v White [1987] 1 WLR 907 .... 14.39 National Trustees Co v Hassett [1907] VLR 404 .... 11.59 Native Bond Pty Ltd (Controller Appointed) v Cant [2016] VSC 206 .... 16.37 Natuna Pty Ltd v Cook [2007] NSWSC 121 .... 13.7 Natwest Markets Australia Pty Ltd v Tenth Vandy Pty Ltd [2008] 21 VR 68 .... 7.37 Nay v Iskov [2012] NSWSC 598 .... 17.8, 17.70 Naylor v Canterbury Park Racecourse Co Ltd (1935) 35 SR (NSW) 281 .... 1.12 Neighbourhood Association DP No 285220 v Moffat (2008) NSW Conv R 56,208 .... 14.38 Neilson v Letch (No 2) [2006] NSWCA 25 .... 17.25 Nelson v Nelson (1995) 184 CLR 538 .... 9.21 — v Walker (1910) 10 CLR 560; [1910] HCA 27 .... 14.8, 14.25, 14.26, 14.33 Neoform Developments & Interiors Pty Ltd v Town & Country Marketing Pty Ltd (2002) 49 ATR 625 .... 13.7 Netherby Properties Pty Ltd v Tower Trust Ltd (1999) 76 SASR 9; [1999] SASC 247 .... 15.22, 15.23, 15.43 Neubacher v Good (2003) 11 BPR 20,877 .... 17.70 Neville v Dale (1990) V Conv R 54-382 .... 14.35 New Galaxy Investments Pty Ltd v Thomson [2017] NSWCA 153 .... 13.7, 13.8 New South Wales Aboriginal Land Council v Minister Administering the Crown Lands Act [2016] HCA 50 .... 8.5 New Zealand Government Property Corporation v HM & S Ltd [1982] QB 1145 .... 3.8 New Zealand Shipping Co Ltd v the Societe des Ateliers et Chantiers de France [1917] 2 KB 717 .... 10.28

Cases — v — [1919] AC 1 .... 10.28 Newbon v City Mutual Life Assurance Society Ltd (1935) 52 CLR 723 .... 13.24 Newcastle City Council v Kern Land Pty Ltd (1997) 42 NSWLR 273 .... 10.18 Newgrosh v Newgrosh (1950) 100 LJ 525 .... 17.30 Newington v Windeyer (1985) 3 NSWLR 555 .... 4.23 Newton Abbot Co-operative Society Ltd v Williamson & Treadgold Ltd [1952] Ch 286 .... 15.23, 15.26 Ngatoa v Ford (1990) 19 NSWLR 72; NSW ConvR 1155-552 .... 17.42, 17.73 Nguyen v Scheiff [2002] NSWSC 151 .... 17.37 Nicholas v Andrew [1920] 20 SR (NSW) 178 .... 4.20 Nicholson v Morgan (No 3) [2013] WASC 110 .... 11.37 Nickerson v Barraclough [1981] Ch 426; [1981] 2 All ER 369; [1981] 2 WLR 773 .... 14.19, 14.20, 14.28 Nielson-Jones v Fedden [1975] Ch 222 .... 17.56 NL Mercantile Group Pty Ltd, In the matter of [2018] NSWSC 1337 .... 10.18 Noakes & Co Ltd v Rice [1902] AC 24 .... 16.2 Nocton v Lord Ashburton [1914] AC 932 .... 4.22, 11.18 Nolan v Nolan (2003) 10 VR 626 .... 2.10 Nominal Defendant v GLG Australia Pty Ltd (2006) 228 CLR 529; [2006] HCA 11 .... 3.14 Noon v Bondi Beach Astra Retirement Village Pty Ltd [2010] NSWCA 202 .... 6.3 Nordern v Blueport Enterprises Ltd [1996] 3 NZLR 450 .... 7.24 Norman v FCT (1963) 109 CLR 9 .... 17.56 North Fort Worth Townsite Co v Taylor (1924) 262 SW 505 .... 4.10 North Shore Gas Co Ltd v Commissioner of Stamp Duty (1940) 63 CLR 2 .... 3.8



North Sydney Printing Pty Ltd v Sabemo Investment Corp Pty Ltd [1971] 2 NSWLR 150 .... 14.19, 14.20, 14.22, 14.23 North-Eastern Railway Co v Elliot [1860] 1 J & H 145 .... 14.33 Northern Counties of England Fire Insurance Co v Whipp (1884) 26 Ch D 482 .... 10.12, 10.13, 10.14 Northern Sandblasting Pty Ltd v Harris (1997) 188 CLR 313; 146 ALR 572 .... 7.22, 7.23 Northern Star Agriculture v Morgan & Banks Developments Pty Ltd [2007] NSWSC 2 .... 13.12 Northern Territory v Alyawarr (2005) 145 FCR 442; [2005] FCAFC 135 .... 8.15, 8.16 — v Arnhem Land Aboriginal Land Trust (2008) 236 CLR 24 .... 3.19, 3.25 — v Arnhem Land Aboriginal Trust (2008) 236 CLR 24 .... 1.30 — v Collins (2008) 235 CLR 619; [2008] HCA 49 .... 3.14 — v Griffiths (2019) 364 ALR 208; [2019] HCA 7 .... 1.7, 5.12, 8.38, 8.40, 8.41, 8.42, 11.14 Northern Territory of Australia v Arnhem Land Aboriginal Trust (The Blue Mud Bay case) (2008) 236 CLR 24 .... 3.19, 8.30 Northstate Carpet Mills Pty Ltd v B R Industries Pty Ltd [2006] NSWSC 1057 .... 13.7 Notaras v Hugh [2003] NSWSC 440 .... 16.40 Nottingham Patent Brick and Tile Co v Butler (1885) 15 QBD 261 .... 15.42 — v — (1886) 16 QBD 778 .... 15.42 Nottingham Permanent Benefit Building Society v Thurstan [1903] AC 6 .... 11.52 Noyes v Pollock (1886) 32 Ch D 53 .... 16.18 NRMA Insurance Ltd v B & B Shipping & Marine Salvage Co Pty Ltd (1947) 47 SR (NSW) 273; 64 WN 58 .... 2.10 NSW Trustee & Guardian as Executor of Will of Walsh (decd) v Gregory (2012) 18 BPR 35,153 .... 17.73 lvii



Australian Property Law

Nugawela v Commonwealth Bank of Australia [2018] WASCA 70 .... 13.11 Nullagine Investments Pty Ltd v Western Australian Club Inc (1993) 177 CLR 635 .... 6.4, 6.5, 17.10, 17.19, 17.73 O

Oakes v Turquand & Anor (1867) LR 2 HL 325 .... 10.28 Oakley v Boston [1976] QB 270 .... 14.35 Ocean Estates v Pinder [1969] 2 AC 19 .... 4.1, 4.13, 4.14, 4.16 Odey v Barber [2006] EWHC 3109 .... 14.42 Official Receiver in Bankruptcy v Schultz (1990) 170 CLR 306 .... 9.13 Offulue v Bossert [2008] 3 WLR 1253 .... 4.15 Ogilvie v Ryan [1976] 2 NSWLR 504 .... 9.14 Old Papa’s Franchise Systems Pty Ltd v Camisa Nominees Pty Ltd [2003] WASCA 11 .... 7.33 Olsson v Dyson (1969) 120 CLR 365 .... 17.56 Olympic Holdings Pty Ltd v Windslow Corporation Pty Ltd (in liq) [2008] WASCA 80 .... 10.20 Omar Property Pty Ltd & Ors v Amcor Flexibles (Port Melbourne) Pty Ltd (No 4) [2020] VSC 216 .... 7.31 Ong v Luong [1991] ANZ Conv R 596 .... 11.69 O’Neill v Roberton-Statum [2015] NSWSC 149 .... 9.29 Onus v Alcoa of Australia Ltd (1981) 149 CLR 27 .... 8.6 Onward Building Society v Smithson (1893) 1 Ch 1 .... 14.29 Orakpo v Manson Investments Ltd [1978] AC 9 .... 9.28, 11.52 O’Regan v Commissioner of Stamp Duties [1921] St R Qd 283 .... 17.56 Osborne v Bradley [1903] 2 Ch 446 .... 15.35 Osborne Park Co-operative Society Ltd v Wilden Pty Ltd (1989) 2 WAR 77 .... 13.10 Osmanoski v Rose [1974] VR 523 .... 13.20, 13.24 lviii

O’Sullivan v Commissioner of Stamp Duties (Qld) [1984] 1 Qd R 212 .... 9.7 Overland v Lenehan (1901) 11 QLJ 59 .... 14.39 Oversea-Chinese Banking Corp Ltd (OCBC) v Malaysian Kuwaiti Investment Co (MKIC) [2003] VSC 495 .... 10.18, 10.20, 11.25 Owners of ‘Shin Kobe Maru’ v Empire Shipping Co Inc (1994) 181 CLR 404 .... 15.47 Owners of East Fremantle Shopping Centre West Strata Plan 8618 v Action Supermarkets Pty Ltd (2008) 37 WAR 498; [2008] WASCA 180 .... 14.8, 14.14 Owners Strata Plan No 61233 v Arcidiacono [2019] NSWSC 1307 .... 14.23, 14.30 Oxford Meat Co Pty Ltd v McDonald (1963) 63 SR (NSW) 423 .... 2.11 Oxley v Hiscock [2004] EWCA Civ 546; [2004] 3 All ER 703; [2005] Fam 211 .... 17.30 Ozibar Pty Ltd v Laroar Holdings Pty Ltd (No 2) [2016] QSC 82 .... 7.33 P

P Samuel & Co Ltd v Dumas [1924] AC 431 .... 10.28 P&A Swift Investments v Combined English Stores Group [1989] AC 632 .... 7.34, 7.35, 7.37 Packer v Wellsted (1658) 2 Sid 39; 82 ER 1244 .... 14.20, 14.22 Paine & Co Ltd v St Neots Gas & Coke Co [1939] 3 All ER 812 .... 14.3 Palmer v Bowman [2000] 1 All ER 22 .... 14.35 — v Rich [1897] 1 Ch 134 .... 17.15, 17.24 Palumberi v Palumberi [1986] ANZ ConvR 593; (1986) NSW ConvR 55-287 .... 3.3, 3.7 Pannizutti & Anor v Trask (1987) 10 NSWLR 531 .... 17.42 Panton v The Owners of Survey Strata Plan 46838 [2013] WASC 35 .... 15.48 Paoro Torotoro v Sutton (1875) 1 NZ Jur (NS) 57 .... 13.2

Cases Papas v Co [2018] NSWSC 1404 .... 11.24 Paragreen v Lim Group Holdings Pty Ltd [2020] VSCA 84 .... 11.7, 14.38 Parker v British Airways Board [1982] QB 1004; [1982] 2 WLR 503 .... 2.14, 2.17 — v Registrar-General [1977] 1 NSWLR 22 .... 11.73 — v South Australian Housing Trust .... 7.22 — v Trigg [1874] WN (UK) 27 .... 17.42 — v Webb (1822) 3 Salk 4 .... 7.34 Parkinson v Hanbury (1860) 1 Dr & Sm 143 .... 9.40, 16.46 Parkview Qld Pty Ltd v Commonwealth Bank of Australia [2013] NSWCA 422 .... 7.14 Parramore v Duggan (1995) 183 CLR 633 .... 14.17, 14.25 Parsons v McBain (2001) 109 FCR 120 .... 9.29 Partriche v Powlet (1740) 2 Atk 54; 26 ER 430 .... 17.50, 17.56, 17.62, 17.65 Partridge v McIntosh and Sons Ltd (1933) 49 CLR 453; [1933] ALR 417 .... 17.62 Pascoe v Swan (1859) 27 Beav 508; 54 ER 201 .... 17.34, 17.35, 17.36, 17.42 Patmore v Upton (2004) 13 Tas R 95; [2004] TASSC 77 .... 13.7 Patzak v Lytton [1984] WAR 353 .... 17.56 Pavey & Matthews Pty Ltd v Paul (1987) 162 CLR 221; [1987] HCA 5 .... 9.28 Pavlou, Re [1993] 1 WLR 1046 .... 17.38 Payne v Dwyer [2013] WASC 271 .... 4.7, 4.13 Peaceable d Uncle v Watson (1811) 4 Taunt 16; 128 ER 232 .... 2.11 Peacock v Custins [2002] 1 WLR 1815; [2001] 2 All ER 827 .... 14.39 Pearce v Brain [1929] 2 KB 310 .... 11.52 — v City of Hobart [1981] Tas R 334 .... 14.39 Peat v Chapman (1750) 1 Ves Sen 542 .... 17.15 Pegasus Gold Australia Ltd v Mesto Minerals (Australia) Ltd [2003] NTCA 203 .... 3.5 Pekel v Humich (1999) 21 WAR 24 .... 14.35



Peldan v Anderson (2006) 227 CLR 217; 229 ALR 432 .... 11.7, 11.14, 17.53, 17.64, 17.66, 17.67, 17.68, 17.69 Pemberton v Barnes (1871) LR 6 Ch App 685 .... 17.42 Pendlebury v Colonial Mutual Life Assurance Society Ltd (1912) 13 CLR 676; [1912] HCA 9 .... 9.40, 16.41, 16.42, 16.47 Penn v Gatenex Co Ltd [1958] 2 QB 210 .... 7.21 Pennington v Waine [2002] 1 WLR 2075 .... 17.57, 17.58 Penny & South-East Railway Co, Re (1857) 7 E & Bl 660 .... 1.27 People of California v Nogarr (1958) 330 P (2nd) 858; 67 Am LR (2nd) 992 .... 17.62 People v Nogarr 330 P 2d 858; 67 ALR 2d 992 (1958) .... 17.61 Permanent Mortgages Pty Ltd v Vandenbergh [2010] WASC 10 .... 10.18, 11.26, 11.37 Permanent Trustee Co Ltd v Freedom From Hunger Campaign (1991) 25 NSWLR 140 .... 17.70 Permanent Trustee Nominees (Canberra) Ltd, Re [1989] 1 Qd R 3147 .... 17.42, 17.73 Perpetual Trustee Co v Williams (1913) 13 SR (NSW) 209 .... 6.12, 6.13 Perpetual Trustee Co Ltd v Scheiler (1948) 49 SR (NSW) 169 .... 5.19 — v Smith (2010) 186 FCR 566; 273 ALR 469; [2010] FCAFC 91 .... 7.11, 10.18, 10.24, 11.69, 13.20 Perpetual Trustees Victoria Ltd v English (2010) 14 BPR 27,339; [2010] NSWCA 32 .... 14.40, 16.37 Perron Investments Pty Ltd v Tim Davies Landscaping Pty Ltd [2009] WASCA 171 .... 3.9 Perry v Clissold (1906) 4 CLR 374; [1907] AC 73 .... 2.3, 2.9, 2.10, 2.11, 2.12, 2.13, 2.17, 2.19, 4.3, 8.8 Perry v Rolfe [1948] VLR 297 .... 9.40, 16.2, 16.4 lix



Australian Property Law

Person-to-Person Financial Services Pty Ltd v Sharari [1984] 1 NSWLR 745 .... 13.16, 13.20, 13.23 Pertsoulis, In the Marriage of (1980) 6 Fam LR 39 .... 17.56 Petkov v Lucerne Nominees Pty Ltd (1992) 7 WAR 163 .... 4.7, 4.10, 4.13 Pettey v Parsons (1914) 2 Ch 653 .... 14.43 Pettitt v Pettitt [1970] AC 777; [1969] 2 All ER 385 .... 9.22, 9.26, 17.30 Pettkus v Becker (1980) 117 DLR (3d) 257 .... 9.26, 9.28 Pfeiffle v Pfeiffle (1989) 13 Fam LR 692 .... 17.63 Phillips v Marrickville Municipal Council [2002] NSWSC 396 .... 4.11 — v McLachlan [1884] 5 LR (NSW) 168 .... 14.29 — v Phillips (1862) 4 De G F & J 208; 45 ER 1164; [1861] EngR 1044 .... 9.40, 10.28, 10.29, 13.21, 13.27 — v Southage Pty Ltd [2014] VSCA 17 .... 4.1 Philos Pty Ltd v National Bank of Australasia (1976) 5 BPR 11810 .... 10.20 Phipps v Pears [1964] 2 All ER 35 .... 14.12 Phoenix Commercial Enterprises Pty Ltd v City of Canada Bay Council [2010] NSWCA 64 .... 11.14 Piatek v Piatek (2010) 245 FLR 137 .... 9.27 Pico Holdings Inc v Wave Vistas Pty Ltd (2005) 79 ALJR 825 .... 16.27 Picton-Warlow v Allendale Holdings Pty Ltd [1988] WAR 107 .... 7.33 Pilcher v Rawlins (1872) LR 7 Ch App 259…. 10.16, 10.17, 13.27 Pinewood Estate, Farnborough, Re [1958] Ch 280 .... 15.32 Pinnington v Galland (1853) 22 LJ Ex 348; 9 Exch 1; 1 CLR 819; 22 LTOS 41 .... 14.20, 14.32 Pipikos v Trayans (2018) 359 ALR 210 .... 9.15, 9.16 Pirie v Registrar-General (1962) 109 CLR 619 .... 15.18, 15.19, 15.21, 15.26 lx

Piromalli v Di Masi [1980] WAR 173 .... 14.35 Piroshenko v Grojsman [2010] VSC 240 .... 13.11 Plaister Perpetual Trustee Co, Re v Crawshaw (1934) 34 SR (NSW) 547 .... 17.70 Planet Kids Ltd v Auckland Council [2013] NZSC 147 .... 7.39 Planning Commission (WA) v Temwood Holdings Pty Ltd (2004) 221 CLR 30 .... 2.10 Platzer v Commonwealth Bank of Australia [1997] 1 Qd R 266 .... 13.27, 13.28 Plimmer v Mayor, Councillors and Citizens of the City of Wellington (1884) 9 App Cas 699 .... 9.30 Plumpton v Plumpton (1885) 11 VLR 733 .... 13.2 Police Association of South Australia, In the Matter of An Application By [2008] SASC 299 .... 11.22 Pollard’s Estate, Re (1863) 3 De GJ and Sm 541; 46 ER 746 .... 17.62 Pomal Kanji Govindji v Vrajlal Karsandas Purohit (1989) 76 AIR 436 .... 16.8 Pomfret v Ricroft (1669) 2 Keb 505; 1 Sid 429; 1 Wms Saund 323 .... 14.20 Poole’s Case [1738] EngR 617; 90 ER 934 .... 3.8, 6.2 Post Investments Pty Ltd v Wilson (1990) 26 NSWLR 598 .... 14.48, 15.46 Potter v North (1669) 1 Vent 387 .... 14.11 Pottinger v Raffone (Jamaica) [2007] UKPC 22 .... 4.15 Poulton v Moore [1915] 1 KB 400 .... 14.29 Powell v In de Braekt [2005] WASC 8 .... 9.29 — v Langdon (1944) 45 SR (NSW) 136 .... 14.39 — v McFarlane (1979) 38 P & Cr 452 .... 4.14, 4.16, 4.20 Power Rental Op Co Australia, LLC v Forge Group Power Ltd (in liq) (receivers and managers appointed) [2017] NSWCA 8 .... 3.14, 3.15 Power v Grace [1932] 2 DLR 793 .... 17.62

Cases Pozetu Pty Ltd v Alexander James Pty Ltd [2016] NSWCA 208 .... 7.14 Pratten v Warringah Shire Council [1969] 2 NSWLR 161 .... 11.49, 11.50, 11.51, 11.56, 11.57, 11.58 Presbyterian Church (NSW) Property Trust v Scots Church Development Ltd (2007) 64 ACSR 31 .... 11.22 Price v Perpetual Trustee (1955) 72 WN (NSW) 290 .... 7.31 PricewaterhouseCoopers Legal v Perpetual Trustees Victoria Ltd [2007] NSWCA 271 .... 3.1, 3.3 Primepoint Asset Pty Ltd v Fabray Pty Ltd [2010] WASC 366 .... 11.2 Proctor v Hodgson (1855) 10 Exch 824; 156 ER 674 .... 14.22 Progressive Mailing House Pty Ltd v Tabali Pty Ltd (1985) 157 CLR 17; 57 ALR 609 .... 7.37, 7.38, 7.41, 17.36 Project Blue Moon Pty Ltd v Fairway Trading Pty Ltd [2000] FCA 127 .... 7.24 Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 .... 15.47 Project Research Pty Ltd v Permanent Trustee of Australia Ltd (1990) 5 BPR 97,341 .... 16.4 Property & Bloodstock Ltd v Emerton (1968) 1 Ch 94 .... 16.46 Property Builders Pty Ltd v Adelaide Bank Ltd (2011) 15 BPR 29,411 .... 16.37 Proprietors Strata Plan No 9968 v Proprietors Strata Plan No 11,173 [1979] 2 NSWLR 605 .... 14.44, 14.46 Prowse v Johnstone [2012] VSC 4 .... 15.48 — v — [2015] VSC 621 .... 15.43 Prudential Assurance Co Ltd v London Residuary Body [1992] 2 AC 386 .... 7.11 PSAL Pty Ltd v Raja [2016] WASC 295 .... 9.37 PT Ltd v Maradona Pty Ltd (1992) 27 NSWLR 241 .... 9.12 — v — (1992) 25 NSWLR 643 .... 11.16, 14.40 Public Trustee v Commissioner of Stamp Duties [1925] NZLR 237 .... 17.56



— v Evans (1985) 2 NSWLR 188 .... 17.8 17.70 — v Fraser (1987) 9 NSWLR 433 .... 17.70 — v Paradiso (1995) 64 SASR 387 .... 11.60 — v Pfeiffle [1991] 1 VR 19 .... 17.15, 17.16, 17.17 Public Trustee of Queensland v Public Trustee of Queensland [2014] QSC 47 .... 17.8 — v Smith [2008] QSC 339 .... 6.19 Public Trustee (WA) v Mack [2017] WASC 325 .... 17.8 Pugh v Savage [1970] 2 QB 373 .... 14.36 Pukuweka Sawmills Ltd v Winger (1917) NZLR 81 .... 3.2 Purchase v Lichfield Brewery Company (1915) 1 KB 184 .... 7.33, 7.35 Purple Tangerine Pty Ltd v Australian Financial Loan Pty Ltd [2013] VSC 411 .... 7.24 Pwllbach Colliery Co Ltd v Woodman [1915] AC 624; [1915] All ER Rep 124 .... 14.12, 14.22, 14.24, 14.26 Pye, Ex parte (1811) 18 Ves Jun 140; 27434 ER 271 .... 17.56 Pyer v Carter (1857) 1 H & N 916; 156 ER 1472 .... 14.32, 14.33 Pyramid Building Society (In liq) v Scorpion Hotels Pty Ltd [1998] 1 VR 188 .... 11.23, 11.32, 11.34, 11.42, 11.52 Pyrmont Point Pty Ltd v Westacott [2016] NSWCA 33 .... 11.16 Q

QGC Pty Ltd v Bygrave (No 3) [2011] FCA .... 8.46 Quach v Marrickville Municipal Council (1990) 22 NSWLR 55 .... 11.51 Queensland v Congoo (2015) 256 CLR 239 .... 8.29 Queensland Premier Mines Pty Ltd v French (2007) 235 CLR 81; 82 ALJR 115 .... 11.7, 11.64, 16.37 Quest Rose Hill Pty Ltd v The Owners Corporation of Strata Plan 64025 (2012) 16 BPR 31,387 .... 7.7, 7.14 lxi



Australian Property Law

R

R v D’Eyncourt (1888) 21 QBD 109 .... 2.17 — v Eastern Archipelago Co (1853) 22 LJQB 196 .... 8.8 — v Evans [1957] NZLR 1128 .... 17.62 — v Holland (1647) Style 20; 82 ER 498 .... 9.6 — v Morton (1873) LR 2 CCR 22 .... 10.3 — v Otley (1830) 1 B & Ad 161 .... 3.2 — v Oxfordshire County Council; Ex parte Sunningwell Parish Council [2000] 1 AC 335 .... 14.35 — v Ramsay and Foote (1883) 48 LT 733 .... 1.27 — v Secretary of State for the Environment; Ex parte Davies (1990) 61 P & CR 487 .... 4.14 — v Sparrow (1990) 70 DLR 385 .... 8.8 — v Steel (1834) 1 Legge 65 .... 5.9 — v Steele [1834] NSWSC 111 .... 4.7 — v Teller Home Furnishers Pty Ltd (In Liq) Electronic Industries v Horsburgh [1967] VR 313 .... 7.30 — v The Registrar of Titles; Ex parte Waddington [1917] VLR 603 .... 14.8 — v Toohey; Ex parte Meneling Station Pty Ltd (1982) 158 CLR 327; 44 ALR 63 .... 1.6, 8.19 — v Tower Hamlets London Borough Council [1999] QB 109 .... 7.14 R & I Bank of Western Australia Ltd v Lavery (unreported, Supreme Court of Western Australia, 25 October 1993, BC9301503) .... 13.7 R (Beresford) v Sunderland City Council [2004] 1 AC 889 .... 14.35 R K Roseblade and V M Roseblade and the Conveyancing Act, Re [1964–5] NSWR 2044 .... 14.47 Radaich v Smith (1959) 101 CLR 209 .... 7.5, 7.6, 7.7, 7.8, 8.23 Rafael v Allison [1988] 1 WWR 570 .... 13.27 Rainbowforce Pty Ltd v Skyton Holdings Ltd (2010) 171 LGERA 288 .... 14.23 Rains v Buxton (1880) 14 Ch D 537 .... 4.7 lxii

Raleigh v Glover (1866) 3 WW & A’B (Eq) 163 .... 11.40 Rambaldi v Commissioner of Taxation (2017) 107 ATR 1 .... 9.19 Ramnarace v Lutchman [2001] 1 WLR 1651 .... 4.11 Ramsden v Dyson (1886) LR1HL 129 .... 7.16 Rance v Kensett (1916) 16 SR (NSW) 285 .... 1.12 Randell, Re; Randell v Dixon (1888) 38 Ch D 213 .... 6.12 Rasmanis v Jurewitsch (1968) 88 WN (Pt 1) (NSW) 59 .... 17.8 — v — (1969) 70 SR (NSW) 407 .... 17.70 Rasmussen v Rasmussen [1995] 1 VR 613 .... 11.41, 11.42, 11.43, 11.47, 11.48 Ratcliffe v Watters (1969) 89 WN (Pt 1) (NSW) 497; [1969] 2 NSWR 146 .... 11.13, 11.32, 11.44 Rathwell v Rathwell (1978) 83 DLR (3d) 289 .... 9.28 Raulfs v Fishy Bite Pty Ltd; Fishy Bite Pty Ltd v Raulfs [2012] NSWCA 135 .... 9.19 Rawlinson v Ames [1925] Ch 96 .... 9.14 Rayner v Preston (1881) 18 Ch D 1 .... 9.35 RCA Corporation v Custom Cleared Sales Pty Ltd (1978) 19 ALR 123 .... 10.18 Red Pepper Property Group Pty Ltd v S 3 Sth Melb Pty Ltd [2019] VSC 4 .... 7.37 Reed v Sheen (1982) 39 ALR 257 .... 13.24 Rees v Rees [1931] SASR 78 .... 17.34, 17.36, 17.42 Refina Pty Ltd v Binnie [2009] NSWSC 914 .... 4.10, 4.23 — v — [2010] NSWCA 192 .... 4.23 Refund of Dues under Timber Regulations, Re [1935] AC 184 .... 14.3 Reg v Symonds (1847) NZPCC .... 8.6 Regent v Millett (1976) 133 CLR 679; 10 ALR 496 .... 9.14, 9.15 Regis Property Co Ltd v Dudley [1959] AC 370 .... 7.26 Registrar-General of New South Wales v Jea Holdings (Aust) Pty Ltd (2015) 88 NSWLR 321; [2015] NSWCA 74 .... 14.3, 14.13

Cases Registrar-General, Ex parte; Re Council of Municipality of Randwick (1951) 51 SR (NSW) 220 .... 11.50 Regreen Asset Holdings Pty Ltd v Castricum Brothers Australia Pty Ltd [2015] VSCA 286 .... 3.8, 7.27 Reid v Bickerstaff [1909] 2 Ch 305 .... 15.37, 15.38 — v Smith (1905) 3 CLR 656; [1905] HCA 54 .... 3.1, 3.2, 3.14 Reid & Co v Minister for Public Works (1902) 2 SR (NSW) (L) 405 .... 16.15 Renals v Cowlishaw (1878) 9 Ch D 125 .... 15.26, 15.30, 15.31, 15.32 — v — (1879) 11 Ch D 866 .... 15.38 Renshaw v Queensland Mining Corporation (No 2) [2016] FCA 1482 .... 13.11 Rentoul v Rentoul [1944] VLR 205 .... 17.15 Renwarl Pty Ltd v Birky [1998] ANZ Conv R 515 .... 13.7 Repatriation Commission v Tsourounakis (2007) 239 ALR 491 .... 9.31 Residential Housing Corporation v Esber (2011) 80 NSWLR 69 .... 13.3 Reuthlinger v MacDonald [1976] 1 NSWLR 88 .... 6.7 Reynolds v Ashby and Son (1904) AC 466 .... 3.2 Rhone v Stephens [1994] 2 AC 310; [1994] 2 All ER 65 .... 15.8, 15.9, 15.10, 15.12, 15.19, 15.21 Rice v George (1873) 20 Grant 221 .... 17.42 — v Noakes [1900] 2 Ch 445 .... 16.2 — v Rice (1853) 2 Drew 73; 61 ER 646 .... 9.40, 10.22, 10.23, 10.24, 10.25, 11.13, 13.14, 13.19, 13.27 Richards v Delbridge (1874) LR 18 Eq 11 .... 17.56 — v Rose (1853) 9 Exch 218 .... 14.32 Richardson v Aileen Pty Ltd; Application by DJ Hughes [2007] VSC 104 .... 13.28 Riches v Hogben [1985] 2 Qd R 292 .... 9.30 Ridley, Re; Buckton v Hay and Sweet (1917) 33 LQR 236 .... 6.2



Riley and Real Property Act, Re (1964) 82 WN (Pt 1) (NSW) 373 .... 4.10 Riley v Penttila [1974] VR 547 .... 4.13, 4.20, 14.12, 14.13, 14.39, 14.45, 14.46 Rimmer v Rimmer [1952] 2 All ER 863, [1953] 1 QB 63 .... 17.30 — v Webster [1902] 2 Ch 163 .... 10.25, 13.14 Ripka Pty Ltd v Maggiore Bakeries Pty Ltd [1984] VR 629 .... 7.37 Risk v Northern Territory (2002) 210 CLR 392 .... 3.19 — v — [2006] FCA 404 .... 8.16 — v — (2007) 240 ALR 75; [2007] FCAFC 46 .... 8.16 Rixon v Horseshoe Pastoral Co Pty Ltd [2017] NSWSC 1293 .... 14.23 Road Australia Pty Ltd v Commissioner of Stamp Duties [2001] 1 Qd R 327 .... 5.10 Roads Corporation v Pearse [2012] VSC 527 .... 4.7 Roake v Chadha [1984] 1 WLR 40 .... 15.25 Roberts v Crown Estate Commissioners [2008] EWCA Civ 98 .... 4.7 — v Jones (1940) 30 NE 2d 392 .... 6.4 — v Karr (1809) 1 Taunt 495 .... 14.29 — v Swangrove Estates Pty Ltd [2008] Ch 439 .... 4.7 Robertson v Butler [1915] VLR 31 .... 4.9 — v Fraser (1871) 6 Ch App 696 .... 17.12, 17.13, 17.15 Robinson, Re [1972] VR 278 .... 15.47, 15.48 Robinson v Preston (1858) 4 K & J 505; 70 ER 211 .... 9.21, 17.24 — v The Registrar-General [1983] NSW Conv R 55-128 .... 11.74 Roblin v Public Trustee for the Australian Capital Territory [2015] ACTSC 100 .... 1.29, 2.4 Roche v Douglas (2000) 22 WAR 331; [2000] WASC 146 .... 2.4, 2.5 Rock Bottom Fashion Market Pty Ltd (In liq) v H R & C E Griffiths Pty Ltd (unreported, Queensland Court of Appeal, 6 March 1998) .... 17.36 lxiii



Australian Property Law

Rodwell GR Evans & Co Pty Ltd [1978] 1 NSWLR 448 .... 14.35 Roe d Haldane v Harvey (1769) 4 Burr 2484; 98 ER 302 .... 2.11 Roe d Reade v Reade (1799) 8 TR 118; 101 ER 1298 .... 9.6 Rogers v Hosegood [1900] 2 Ch 388 .... 7.34, 7.37, 15.25, 15.26, 15.19, 15.31 — v Rajendro Dutt (1860) 13 Moore PCC 209 .... 1.27 — v Resi-Statewide Corporation Ltd (1991) 101 ALR 377 .... 11.60 Rogers’ Question, Re [1948] 1 All ER 328 .... 17.30 Roman Catholic Bishop of the Diocese of Christchurch v RFD Investments Ltd (in liquidation) [2015] NZHC 2647 .... 7.39 Romanos v Pentegold Investments Pty Ltd (2003) 217 CLR 367 .... 9.27, 10.18 Ronan v Australia and New Zealand Banking Corporation (2000) 2 VR 531 .... 16.30 Rose v Hvric (1963) 108 CLR 353 .... 11.52 Rose, Re; Rose v Inland Revenue Commissioners [1952] Ch 499 .... 17.56, 17.57 Rosedale Farm (NSW) Pty Ltd, Re [2010] NSWSC 1321 .... 14.46, 14.47 Rosenberg v Cook (1881) 8 QBD 162 .... 2.11 Rosher, Re (1884) 26 Ch D 801 .... 6.3 Ross v Bank of Commerce (Saint Kitts Nevis) Trust and Savings Association Ltd [2012] UKPC 3 .... 16.29 Ross v Ross [2010] NSWCA 301 .... 17.43 Ross Bilton v Georgia Ligdas [2016] NSWSC 1262 .... 14.35, 14.44 Ross T Smyth & Co Ltd v T D Bailey Son & Co [1940] 3 All ER 60 .... 7.37 Rosset’s case [1990] 1 All ER 1111; [1991] 1 AC 107 .... 17.30 Rowbotham v Wilson (1857) 8 E and B 123; (1860) 8 HLC 348 .... 17.47 Rowe v National Australia Bank Ltd [2019] WASCA 140 .... 16.47 Rowland v Divall [1923] 2 KB 500 .... 2.17 Roy v Lagona [2010] VSC 250 .... 4.19, 4.21 lxiv

Royal Bank of Scotland v Etridge [2001] 4 All ER 449 .... 10.18 Royal Brunei Airlines Sdn Bhd v Tan Kok Ming [1995] 2 AC 378 .... 11.2311.34 Royalene Pty Ltd v Registrar of Titles [2008] QSC 64 .... 11.24 Roycroft v Uglum [1922] 1 WWR 78 .... 13.27 Rrumburriya Borroloola Claim Group v Northern Territory of Australia [2016] FCA 776 .... 8.17 Rubibi Community v State of Western Australia (No 7) [2006] FCA 459 .... 8.6 Rudd v Bowles (1912) 2 Ch 60 .... 14.29 Rudge v Richens (1873) LR 8 CP 358 .... 16.35 Rural View Developments Pty Ltd v Fastfort Pty Ltd [2009] QSC 244 .... 15.10, 15.21 Russell v Russell (1783) 1 Bro CC 269; 28 ER 1121 .... 16.28 — v Wilson (1923) 33 CLR 538; [1923] HCA 60 .... 2.3, 2.10, 2.17 Russo v Bendigo Bank [1999] 3 VR 376 .... 11.23, 11.24 Ruthol v Mills (2003) 11 BPR 20,793 .... 10.28 Ryan v Dries (2002) 10 BPR 19,497 .... 17.37, 17.38, 17.41, 17.43, 17.44 — v O’Sullivan [1956] VLR 99 .... 16.39 — v Ryan [2012] NSWSC 636 .... 17.29 — v Sutherland [2011] NSWSC 1397 .... 15.21 Rye v Rye [1962] AC 496 .... 7.40 Rylands v Fletcher (1868) LR 3 HL 330 .... 1.27 S

S & D International Pty Ltd (No 4), Re (2010) 79 ASCR 595 .... 9.39, 13.25, 13.27, 13.28 S and Y Investments (No 2) Pty Ltd (in liq) v Commercial Union Assurance Co of Australia Ltd (1986) 44 NTR 14 .... 10.28 Saade v Registrar-General (1993) 179 CLR 58 .... 11.73, 11.75

Cases Sabri, Re; Ex parte Brien v Australia & New Zealand Banking Group Ltd (1996) 21 Fam LR 213 .... 9.29 Sacks v Klein [2011] VSC 451 .... 13.3, 17.25 Saeed v Minister of Immigration and Citizenship (2010) 241 CLR 252; [2010] HCA 23 .... 3.14 Saffron v Societe Miniere Cafrika (1958) 100 CLR 231 .... 13.27 Sahab Holdings Pty Ltd v Registrar-General [2011] NSWCA 395 .... 11.57, 11.59 Said v Butt [1920] 3 KB 497 .... 1.12 Sakoua v Williams (2005) 64 NSWLR 588 .... 7.23 Saldanha v City of Belmont [2018] WASCA 7 .... 11.14, 15.48 Saleeba v Wilke (2007) ANZ ConvR 664 .... 17.7, 17.16, 17.64 Salt & Tyler v Marquess of Northampton [1892] AC 1 .... 16.2 Saltri III v MD Mezzanine SA [2013] 1 AER Comm 661 .... 16.41 Sam Management Services (Aust) Pty Ltd v Bank of Western Australia Ltd [2009] NSWCA 320 .... 7.27 — v — [2009] NSWSC 676 .... 16.9 Sammon, Re (1979) 94 DLR (3d) 594 .... 17.56 Sampi v Western Australia (2010) 266 ALR 537 .... 8.15 Samuel Allen & Sons Ltd, Re [1907] 1 Ch 575 .... 3.9 Samuel v Jarrah Timber and Wood Paving Corporation Ltd [1904] UKHL 2; [1904] AC 323 .... 16.2, 16.6, 16.8 Sander v Twigg (1887) 13 VLR 765 .... 13.2 Sandgate Corporation Pty Ltd v Ionnou Nominees Pty Ltd (2000) 22 WAR 172 .... 16.4 Sandhurst Trustees v Australia Country Cinema Pty Ltd [2006] Q ConvR 54-658 .... 15.25 Santley v Wilde [1899] 2 Ch 474 .... 16.13 Sanwa Australia Leasing Ltd v National Westminster Finance Australia (1988) 4 BPR 9514 .... 3.9



Saraswati v R (1991) 172 CLR 1; [1991] HCA 21 .... 11.52, 11.56 Sarat Chunder Dey v Gopal Chunder Laha (1892) LR 19 I.A 203 .... 14.29 Sargent v ASL Developments Ltd (1974) 131 CLR 634 .... 10.18 Scapinello v Scapinello (1988) SASR 316 .... 17.42 Scarcella v Linknarf Management Services Pty Ltd (in liquidation) [2004] NSWSC 360 .... 7.37 Schmidt v 28 Myola Street (2006) 14 VR 447 .... 13.7 Schultz v Corwill Properties Pty Ltd (1969) 90 WN (NSW) (Pt 1) 529; [1969] 2 NSWR 576 .... 10.18, 11.23, 11.24, 11.27 — v Turner [2008] 2 BFRA 514 .... 16.28 Schwann v Cotton [1916] 2 Ch 459 .... 14.25 Scoones v Galvin and the Public Trustee [1934] NZLR 1004 .... 17.56 Seaforth Land Sales Pty Ltd’s Land (No 2), Re [1977] Qd R 317 .... 14.23 Seaman v Vawdrey (1810) 16 Ves 390 .... 14.43 Secretary, Department of Social Security v James (1990) 95 ALR 615 .... 9.11 Secure Funding Ltd v Donneley [2010] QSC 91 .... 13.18 Secured Income Real Estate (Australia) Ltd v St Martins Investments Pty Ltd (1979)144 CLR 596 .... 7.27, 7.31 Seddon v Smith (1877) 36 LT 168 .... 4.1, 4.13, 4.16 — v Tutop (1796) 6 TR 607; 101 ER 729 .... 13.27 Sefton v Tophams Ltd [1967] 1 AC 60 .... 15.26 Segal v Barel [2013] NSWCA 92 .... 17.44, 17.73 Selwyn v Garfit (1888) 38 Ch D 273 .... 9.40, 16.46 Sertari Pty Ltd v Nirimba Developments Pty Ltd [2007] NSWCA 324 .... 14.40 Seton v Slade (1802) 7 Ves Jun 265; 32 ER 108 .... 9.36, 16.6 Settree Estates, Re; Robinson v Settree [2018] NSWSC 1413 .... 17.8

lxv



Australian Property Law

Sewell v Agricultural Bank of Western Australia (1930) 44 CLR 104 .... 9.40 Sexton v Horton (1926) 38 CLR 240; [1926] ALR 373 .... 1.12, 5.12 Seymour v Seymour (1996) 40 NSWLR 358 .... 4.22 Shah v Shah [2011] WTLR 519 .... 17.57 Sharer, Re; Abbot v Sharer (1912) 57 Sol Jo 60 .... 17.62 Sharp’s Settlement Trusts, Re [1973] Ch 331 .... 5.18 Shaw Excavations Pty Ltd v Portfolio Investments Pty Ltd [2000] TASSC 185 .... 16.42 Shaw v Foster (1872) LR 5 HL 321 .... 9.35 — v Garbutt (1996) 7 BPR 14,816 .... 2.10, 4.10, 4.12 Shell-Mex & BP Ltd v Manchester Garages Ltd [1971] 1 All ER 841; [1971] 1 WLR 612 .... 7.6 Shelmerdine v Ringen Pty Ltd [1993] 1 VR 315 .... 4.21, 14.36, 14.45 Shephard v Cartwright [1955] AC 431 .... 9.17, 9.21 Shepherd Homes Ltd v Sandham (No 2) [1971] 2 All ER 1267 .... 15.21 Sherren v Pearson (1887) 14 SCR 581 .... 4.10 Shevill v Builders Licensing Board (1982) 149 CLR 620 .... 7.37, 7.38, 7.41 Shiloh Spinners Ltd v Harding [1973] AC 691; [1973] 1 All ER 90 .... 9.36, 13.27 Shorten v David Hurst Constructions Pty Ltd (2008) 72 NSWLR 211; [2008] NSWCA 134 .... 3.14 Shrivdev Singh v Sucha Singh [2000] AIR (1st Supp) 1935 .... 16.8 Shropshire Union Railways & Canal Co v R (1875) LR 7 HL 496 .... 11.13, 13.19, 13.24, 13.27 Siddons v Short, Harley & Co (1877) 2 CPD 572 .... 14.25 Sidhu v Van Dyke (2014) 251 CLR 505; [2014] HCA 19 .... 7.16, 7.17, 9.31 Siemenski v Brooks Nominees [1990] Tas SR 236 .... 6.12 lxvi

Signature of St Albans (Property) Guernsey Ltd v Wragg [2018] Ch 264 .... 15.10 Silven Properties v Royal Bank of Scotland [2004] 1 BCLC 359 .... 16.41 Silver Brothers Ltd, In re [1986] UKHL 3; [1932] AC 514 .... 11.56 Simm v Anglo-American Telegraph Co (1879) 5 QBD 188 .... 14.29 Simmons v Simmons [2019] NSWSC 1050 .... 17.53 Sinclair v Hope Investments Pty Ltd [1982] 2 NSWLR 870 .... 13.7, 16.47 Singer v Berghouse [No 2] (High Court of Australia, unreported, 14 September 1994; [1944] HCJB 42) .... 17.42 Singh v Kaur Bal [No 2] [2014] WASCA 88 .... 17.53 Sino Iron Pty Ltd v Palmer (No 3) [2015] QSC 94 .... 9.19 Sistrom v Urh (1992) 40 FCR 550 .... 11.34 Sivritas v Sivritas (2008) 23 VR 349 .... 9.17 Small v Oliver & Saunders (Developments) Ltd [2006] EWHC 1293 .... 15.25, 15.38, 15.40 Smallman v Agborow (1617) Cro Jac 417; 79 ER 356 .... 17.59 Smith, Re [1967] VR 341 .... 6.12 Smith v Australian Woollen Mills Ltd [1934] ALR 129 .... 1.12 — v Gould [2014] VSCA 138 .... 2.14 — v Jones [1954] 1 WLR 1089 .... 10.18 — v National Trust Co (1912) 45 Can SCR 618 .... 17.62 — v Seghill Overseers (1875) LR 10 QB 422; [1874–80] All ER Rep 373 .... 7.6 Smith and Snipes Hall Farm Ltd v River Douglas Catchment Board [1949] 2 KB 500 .... 15.14, 15.26 Smith LJ in Hobson v Gorringe [1897] 1 Ch 182 .... 3.9 Smith R (on the application of) v The Land Registry (Peterborough) [2010] NPC 31 .... 4.7 Snedeker v Warring, 2 Kernan 178 .... 3.2

Cases Snowy Hydro Ltd v Commissioner of State Revenue [2010] VSC 221 .... 3.7 Socimer International Bank Ltd v Standard Bank London Ltd [2006] EWHC 718 (Comm) .... 16.41 Solling v Broughton [1893] AC 556 .... 4.9 Solomon v Metropolitan Police Commissioner [1982] Crim LR 606 .... 2.17 — v Vintners’ Co (1859) 4 H & N 585 .... 14.11 Somma v Hazelhurst [1978] 2 All ER 1011, [1978] 1 WLR 1014 .... 7.6 Souglides v Tweedie [2012] EWHC 561 .... 6.13 South Australia v Tanner (1989) 166 CLR 161 .... 11.52 South Maitland Railways Pty Ltd v Satellite Centres Australia Pty Ltd [2009] NSWSC 716 .... 4.9 South Staffordshire Water Company v Sharman [1896] 2 QB 44 .... 2.14 South-Eastern Drainage Board (SA) v Savings Bank of South Australia (1939) 62 CLR 603; [1939] HCA 40 .... 11.50, 11.52, 11.56 South-Eastern Railway Co v Warton (1861) 6 H & N 520 .... 14.29 Southern Centre of Theosophy Inc v South Australia [1982] AC 706 .... 3.22, 3.24 Southwark London Borough Council v Tanner [1999] 3 WLR 939 .... 7.24 Southwell v Roberts [1940] HCA 23; (1940) 63 CLR 581 .... 16.8 Sovmots Investments Ltd v Secretary of State for the Environment [1979] AC 144 .... 14.26 Spark v Whale Three Minute Car Wash (1970) 92 WN (NSW) 1087 .... 2.11 Spathis v Hanave Investment Co Pty Ltd [2002] NSWSC 304 .... 7.24 Specialist Diagnostic Services Pty Ltd (Formerly Symbion Pathology Pty Ltd) v Healthscope Ltd (2012) 41 VR 1 .... 7.24, 7.35



Spencer v the Commonwealth (1907) 5 CLR 418 .... 8.39 Spencer, Re; Hale (Caveator) (1904) 4 SR(NSW) 471 .... 13.10 Spencer’s Case (1583) 5 Co Rep 16a; 77 ER 72 .... 7.35, 15.19 Spicer v Martin (1888) 14 App Cas 12 .... 15.38 Spina v Conran Associates Pty Ltd (2008) 13 BPR 25,435 .... 11.37 Sports and General Press Agency Ltd v Our Dogs Publishing Co Ltd [1916] 2 KB 880 .... 1.27 Sportscorp Australia Pty Ltd v Chief Commissioner of State Revenue (2004) 58 ATR 1 .... 9.7 Springette v Defoe [1992] 2 FCR 561 .... 17.30 Spyer v Phillipson (1931) 2 Ch 183 .... 3.2 Squire v Rogers (1979) 27 ALR 330 .... 17.42, 17.43, 17.44 St Alder v Waverley Local Council (2010) 172 LGERA 147 .... 11.51 St Catherine’s Milling and Lumber Co v R (1887) 13 SCR 577 .... 8.6 — v — (1888) 14 App Cas .... 5.8, 8.6, 8.8 St George Bank A Division of Westpac Banking Corporation v Zhang [2013] NSWSC 1418 .... 17.20 Staatz v Berry, in the matter of Wollumbin Horizons Pty Ltd (in liq) (No 3) (2019) 138 ACSR 231 .... 9.3 Stack v Dowden [2007] 2 All ER 929 .... 9.21, 17.29, 17.30, 17.31, 17.32 Stafford v Lee (1992) 65 P & CR 172 .... 14.24 Stanhill Pty Ltd v Jackson (2005) 12 VR 224 .... 15.47, 15.48, 15.49 Stanhope v Lord Verney (1761) 2 Eden 81 .... 10.23 Stanton v Federal Commissioner of Taxation (1955) 92 CLR 630 .... 1.6, 8.19 Starline Furniture Pty Ltd, Re (1982) 6 ACLR 312; 1 ACLC 312 .... 3.10 Stassinopoulos v Stassinopoulos [2011] VSC 647 .... 17.25 lxvii



Australian Property Law

State Bank of New South Wales v Berowra Waters Holdings (1986) 4 NSWLR 398 .... 11.78 State Electricity Commission of Victoria & Joshua’s Contract, Re [1940] VLR 121 .... 14.24 State of Queensland v Beames [2001] QSC 132 .... 3.19 State of Western Australia v Sebastian [2008] FCAFC 65 .... 8.6 Steadman v Steadman [1976] AC 536; [1974] 2 All ER 977 .... 9.14, 9.15 Stenberg v Lechowics [2010] NSWSC 926 .... 17.49 Stephens v Debney (1960) 60 SR (NSW) 468 .... 17.73 Stern v McArthur (1988) 165 CLR 489; 81 ALR 463; [1988] HCA 51 .... 9.2, 9.35, 9.36, 16.8 Stilwell v Blackman [1968] Ch 508 .... 15.32 Stockland (Constructors Pty Ltd) v Allan Richard Carriage (2002) 56 NSWLR 636 .... 2.15 Stoddard v McKay (1970) 2 NBR (2d) 366 .... 4.10 Stokes v Anderson [1991] FCR 539 .... 17.30 — v Berry (1699) 2 Salk 421; 91 ER 366 .... 2.11 — v Whicher [1920] 1 Ch 411 .... 16.27 Stolyar v Towers [2018] NSWCA 6 .... 14.3, 14.8 Stone, Re [1988] 1 Qd R 351 .... 17.8, 17.70 Stone v Registrar of Titles [2012] WASC 21 .... 17.57 Story v Advance Bank Australia Ltd (1993) 31 NSWLR 722 .... 11.32, 11.52, 11.56, 11.67, 14.26 Strachan & Co Ltd v Lyall and Sons Pty Ltd [1953] VLR 81 .... 9.14 Strand Electric and Engineering Co Ltd v Brisford Entertainments Ltd [1952] 2 QB 246 .... 17.36 Strata Management Pty Ltd v Nirta [2015] VSC 187 .... 11.24 lxviii

Street v Mountford [1985] AC 809 .... 1.13, 3.2, 7.6, 7.7, 8.23 Strelly v Winson (1685) 1 Vern 297, 23 ER 480 .... 17.42 Strong v Bird (1874) LR 18 Eq 315 .... 17.56 Stuart v Kingston (1923) 32 CLR 309 .... 10.18, 11.21, 11.23 Stump v Gaby (1852) 2 De GM & G 623; 42 ER 1015 .... 9.40, 10.28 Sturolson & Co v Weniz (1984) 272 EG 326 .... 7.6 Suatu Holdings Pty Ltd v Australian Postal Corporation (1989) 86 ALR 532 .... 11.52 Suffield v Brown (1864) 4 De GJ & Sm 185 .... 14.32 Suhr v Michelmore [2013] VSC 284 .... 15.32 Sun North Investments Pty Ltd as Trustee v Dale [2013] QSC 44 .... 16.4, 16.9 Suncorp Insurance and Finance v Commissioner of Stamp Duties [1998] 2 Qd R 285 .... 9.2 Sunshine Retail Investments Pty Ltd v Wulff [1999] VSC 415 .... 14.35, 14.36 Super 1000 v Pacific General Securities Ltd (2008) 221 FLR 427; [2008] NSWSC 1222 .... 11.26, 11.37 Super Jacobs Pty Ltd v Esera Faalogo [2019] VSC 778 .... 13.7 Sutherland, Duke of v Heathcote (1892) 1 Ch 475 .... 14.3 Suttor v Gundowda Pty Ltd (1950) 81 CLR 418 .... 10.28 Svanosio v McNamara (1956) 96 CLR 186 .... 3.28 Svendsen v State of Queensland [2002] 1 Qd R 216 .... 3.19 Swan v Sinclair [1925] AC 227 .... 14.44 — v Swan (1820) 8 Price 518; 73 ER 570 .... 17.42 — v Uecker [2016] VSC 313 .... 7.7, 7.8, 7.10 Swanston Mortgage Pty Ltd v Trepan Investments Pty Ltd [1994] 1 VR 672 .... 9.39, 13.7, 13.23, 13.27, 16.47 Swanville Investment Pty Ltd & Ors v Riana Pty Ltd [2003] WASCA 121 .... 7.37

Cases Swettenham v Wild [2005] QCA 264 .... 9.27 Swift v Wearing-Smith [2016] NSWCA 38 .... 7.23 Swiss Bank Corp v Lloyds Bank Ltd [1979] Ch 548 .... 16.21 — v — [1982] AC 584 .... 16.23 Swiss Re Life & Health Australia Ltd v Public Trustee of Queensland (No 3) [2018] FCA 1918 .... 17.8, 17.70 Sze Tu v Lowe (2014) 89 NSWLR 317; [2014] NSWCA 462 .... 9.21, 11.37 T

T Choithram International SA v Pagarani [2001] 2 All ER 492…. 17.57 Taddeo v Catalano (1975) 11 SASR 492 .... 13.20, 13.27 Tadrous v Tadrous [2012] NSWCA 16 .... 7.16 Tailby v Official Receiver (1888) 13 App Cas 523 .... 9.36 Tamsco Ltd v Franklins Ltd (2001) 10 BPR 19,077 .... 7.31 Tanwar Enterprises Pty Ltd v Cauchi (2004) 217 CLR 315; [2003] HCA 57 .... 9.35, 9.36, 9.37, 9.38, 10.18, 16.8 Tanzone v Westpac [1999] NSW Conv R 55-908 .... 11.69 Tapling v Jones (1865) 11 HLC 290 .... 1.27 Tara Shire Council v Garner [2003] 1 Qd R 556 .... 11.7, 11.33, 11.34, 11.35, 11.36 Tarleton v Allhusen (1834) 2 A & E 32; 111 ER 13 .... 13.27 Tataurangi Tairuakena v Mua Carr [1927] NZLR 688 .... 11.11 Tatton v Mollineux (1610) Moore (KB) 809; 72 ER 920 .... 6.2 Taylor v Deputy Federal Commissioner of Taxation (1969) 123 CLR 206 .... 17.56 — v Needham (1810) 2 Taunt 278 .... 14.29 — v Wheeler (1707) 2 Salk 449; 91 ER 388 .... 16.23 TCN Channel 9 Pty Ltd v Hayden Enterprises Pty Ltd (1989) 16 NSWLR 130 .... 10.28



Teasdale v Sanderson (1864) 33 Beav 534; 55 ER 476 .... 17.34, 17.36, 17.42 TEC Desert Pty Ltd v Commissioner of State Revenue (2010) 241 CLR 576; 273 ALR 134 .... 3.1, 3.7, 3.8, 3.11, 3.14 Tecbild Ltd v Chamberlain (1969) 20 P & CR 633 .... 4.1, 4.16 Tehidy Minerals Ltd v Norman [1971] 2 QB 528 .... 14.44, 14.45 Telstra Corporation Ltd v The Commonwealth (2008) 234 CLR 10 .... 1.7 Templeton v Leviathan Pty Ltd (1921) 30 CLR 34 .... 13.21 Tennant v Trenchard (1869) LR 4 Ch App 537 .... 16.21 Tennant & Burke v Adamczyk & Ellis [2005] EWCA Civ 1239 .... 4.15 Texaco Antilles Ltd Appellants v Dorothy Kernochan [1973] AC 609 .... 15.32, 15.46 Thambiappah v Commonwealth Bank of Australia [2010] NSWSC 520 .... 16.47 Thamesmead Town Ltd v Allotey [1998] 30 HLR 1052 .... 15.8, 15.9, 15.10, 15.11, 15.12 Thatched House (1716) 1 Eq Cas Abr 322; 21 ER 1075 .... 10.12 Theodore v Mistford (2005) 221 CLR 612 .... 16.11, 16.25, 16.26, 16.27, 16.28, 16.29 Thomas v Clydesdale Bank Plc [2010] EWHC 2755 (QB) .... 10.18 — v Sorrell (1674) Vaugh 330 .... 1.12, 1.13, 7.6 Thompson, Re [1906] 2 Ch 199 .... 6.11 Thompson, Re; Ex parte Nulyarimma (1998) 136 ACTR 9 .... 5.6 Thompson v Hurst [2012] EWCA Civ 1752 .... 17.31 — v Palmer (1933) 49 CLR 507 .... 13.14, 13.24 Thomson v Golden Destiny Investments Pty Ltd [2015] NSWSC 1176 .... 11.31, 13.7 — v McInnes (1911) 12 CLR 562 .... 16.27 Thorner v Major (2009) 1 WLR 776 .... 7.16, 7.18 Thorpe, Re (1961) 80 WN (NSW) 61 .... 17.8 lxix



Australian Property Law

Thorpe v Brumfitt (1873) LR 8 Ch App 650 .... 14.38, 14.39, 14.43 — v Lochel and Ors [2005] WASCA 85 .... 11.22 Thwaites v Ryan [1984] VicRp 7; VR 65 .... 9.14 Tighe & Anor v Pike [2016] QCA 353 .... 11.55 Tilbury West Public School Board and Hastie, Re (1966) 55 DLR (2d) 407 .... 5.18, 6.12 Tilley v Official Receiver (1960) 103 CLR 529 .... 13.27 Tiltwood, Re [1978] 1 Ch 269 .... 15.46 Titchmarsh v Royston Water Co Ltd (1899) 64 JP 56; 48 WR 201; 81 LT 673 .... 14.20 Tito v Waddell (No 2) [1977] Ch 106 .... 15.9 TL Rentals Pty Ltd v Youth on Call Pty Ltd [2018] VSC 105 .... 16.24 Tobias v Nolan (1985) 71 NSR (2d) 92 .... 4.10 Todrick v Western National Omnibus Co Ltd [1934] Ch 561 .... 14.14 Tolman’s Estate, Re (1928) 23 TAS LR 29 .... 17.34, 17.36, 17.42 Tom’s Settlement, Re; Rose v Evans [1987] 1 WLR 1021 .... 6.19 Tonks v Tonks (2003) 11 VR 124 .... 15.26 Toohey v Gunther (1928) 41 CLR 181; [1928] HCA 19 .... 16.6, 16.8 Toohey, Re; Ex parte Meneling Station Pty Ltd (1982) 158 CLR 327 .... 5.19 Toohey’s Ltd v Commissioner of Stamp Duties [1960] SR (NSW) 539 .... 17.56 Toomes v Conset (1745) 3 Atk 261; 26 ER 952 .... 16.6, 16.8 Torbay Hotel Ltd v Jenkins [1927] 2 Ch 225 .... 15.43 Total Oil Great Britain Ltd v Thompson Garages (Biggin Hill) Ltd (1972) 1 QB 318 .... 7.37 Transphere Pty Ltd, Re (1986) 5 NSWLR 309 .... 9.7, 10.9 Travinto Nominees Pty Ltd v Vlattas (1973) 129 CLR 1; [1973] HCA 14 .... 11.52, 11.53, 11.56 lxx

Trego v Hunt [1896] AC 7 .... 15.19 Tregoyd Gardens v Jervis (1997) 8 BPR 15,845 .... 14.23 Treweeke v 36 Wolseley Road Pty Ltd (1973) 128 CLR 274; 1 ALR 104; 47 ALJR 394 .... 14.12, 14.42, 14.43, 14.44, 14.45, 14.46, 14.49 Trewin v Felton [2007] NSWSC 851 .... 14.39 Trieste Investments Pty Ltd v Watson (1963) 64 SR (NSW) 98; [1964] NSWR 1226 .... 11.50, 11.76 Troja v Troja (1994) 33 NSWLR 269 .... 17.8, 17.70 Troncone v Aliperti (1994) 6 BPR 13,291 .... 13.7 Truman, Hanbury Buxton & Co Ltd’s Application, Re [1956] 1 QB 261 .... 14.47 Trustees Executors & Agency Co Ltd v Peters (1960) 102 CLR 537 .... 6.13 Trustees of Hollis’ Hospital and Hague’s Contract, Re The [1899] 2 Ch 540 .... 6.11, 6.12, 6.13 Trustees of the Property of Cummins (a bankrupt) v Cummins (2006) 80 ALJR 589 .... 9.22, 9.23, 17.31, 17.32, 17.67 Trustees, Executors and Agency Co Ltd v Federal Commissioner of Taxation (1917) 23 CLR 576 .... 9.2 Tsang Chuen v Li Po Kwai (1932) AC 715 .... 13.14 Tse Kwong Lam v Wong Chit Sen [1983] 1 WLR 1349 .... 16.41, 16.43 Tubantia, The [1924] P 78; [1924] All ER 615 .... 2.2 Tucker v Coleman (1885) 4 NZLR 128 .... 17.52 Tujilo v Watts [2005] NSWSC 209 .... 15.48 Tulk v Moxhay (1848) 2 Ph 774; 41 ER 1143 .... 15.2, 15.5, 15.8, 15.9, 15.16, 15.17, 15.18, 15.19, 15.21, 15.22, 15.23, 15.24, 15.25, 15.26, 15.31 Turner v Spooner (1861) 30 LJ Ch 803 .... 1.27 Twinsectra Ltd v Yardley [2002] 2 AC 164; [2002] 2 WLR 802 .... 9.19, 11.34

Cases Tymbook Pty Ltd v State of Victoria [2007] VSC 140, .... 7.39 Tyrrell’s Estate, Re (1907) 1 IR 292 .... 6.12 TZ Developments Pty Ltd v Rickman Pty Ltd (1993) 7 BPR 14,605 .... 14.47 U

Ultimate Property Group Pty Ltd v Lord (2004) 60 NSWLR 646 .... 16.41, 16.42, 16.43 Union Bank of London v Kent (1888) 39 Ch D 238 .... 13.14 Union Eagle Ltd v Golden Achievement Ltd [1997] AC 514; [1997] 2 All ER 215 .... 9.36 Union of London and Smith’s Bank Ltd’s Conveyance, Re [1933] Ch 611 .... 15.31, 15.32 United Australia Ltd v Barclays Bank Ltd [1941] AC 1 .... 4.7 United Bank of Kuwait v Sahib [1997] Ch 107 .... 16.28, 16.29 United Starr-Bowkett Co-operative Building Society (No 11) Ltd v Clyne [1968] 1 NSWR 134; (1967) SR (NSW) 331 .... 11.70, 13.20 United States v Santa Fe Railways 314 US 339 (1941) .... 8.8 University of East London Higher Education Corporation v London Borough of Barking and Dagenham [2005] 3 All ER 398 .... 15.46 Uppington v Bullen (1842) 2 Dr & War 184 .... 9.40 Upton v Tasmanian Perpetual Trustees Ltd (2007) 158 FCR 118; 242 ALR 422 .... 16.41, 16.42, 16.43 V

V&O Princi Pty Ltd v Prestige Holdings Group Pty Ltd [2010] VSC 627 .... 7.37 Vacation Club Ltd v A G G Properties Pty Ltd [2019] NSWSC 1357 .... 17.73 Valoutin Pty Ltd v Furst (1998) 154 ALR 119 .... 11.42, 11.48 Valverde v Inch [2018] NSWSC 366 .... 17.18



Van Den Heuvel v Perpetual Trustees Victoria Ltd [2010] NSW Conv R 56-266 .... 11.14, 16.37 Vandervell v Inland Revenue Commissioners [1967] 2 AC 291 .... 9.4, 9.9, 17.56 Vandervell’s Trusts (No 2), Re [1974] Ch 269 .... 17.56 Vane v Vane (1873) 8 Ch App 383 .... 10.18 Vasiliou v Westpac Banking Corporation (2007) 19 VR 229; [2007] VSCA 113 .... 13.7, 16.41 Vassos v State Bank of South Australia [1993] 2 VR 316; (1992) V Conv R ¶54-443 .... 11.14, 11.32, 11.41, 11.46, 11.52, 11.67, 14.26 Vaudeville Electric Cinema Ltd v Muriset [1923] 2 Ch 74 .... 3.2, 3.14 Vaughan v Hancock [1846] EngR 1012; (1846) 3 CB 766; 136 ER 307 .... 9.11 Vernon v Bethell (1762) 2 Eden 110; 28 ER 838; [1762] EngR 18 .... 16.6, 16.8 Versaci v Rechichi [2019] VSC 747 .... 17.16 Vesco Nominees Pty Ltd v Shefan Hair Fashions Pty Ltd (2001) QSC 169 .... 3.8 Vickers v Cowell (1839) 1 Beav 529; 48 ER 1046 .... 17.26 — v Hearst LR 2 HL (Sc) 113 .... 10.13 Vickery v Municipality of Strathfield (1911) 11 SR (NSW) 354 .... 11.50 — v Strathfield Municipal Council (1911) 11 SR (NSW) 354 .... 11.56 Victoria Ground’s Recreation Application, Re (1981) 41 PCR 119 .... 15.46 Victoria Park Racing and Recreation Grounds Company Ltd v Taylor (1937) 58 CLR 479 .... 1.27, 1.28, 1.31, 14.36 Viro v R (1978) 141 CLR 88; [1978] HCA 9 .... 16.8 Voli v Inglewood Shire Council .... 7.22 Vopak Terminal Darwin Pty Ltd v Natural Fuels Darwin Pty Ltd (2009) 258 ALR 89 .... 3.8 Vopak Terminals Australia Pty Ltd v Commissioner of State Revenue (2004) 12 VR 351 .... 3.11, 9.5 lxxi



Australian Property Law

Vrakkas v Registrar of Titles [2008] VSC 281 .... 15.48 Vukicevic v Alliance Acceptance Co Ltd (1987) 9 NSWLR 13 .... 16.18 Vyvyan v Arthur (1823) 1 B & C 410 .... 7.34 W

W v D [2012] SASCFC 142 .... 17.43, 17.44 Wade v New South Wales Rutile Mining Co Pty Ltd .... 8.23 Wade v Trnka [2006] NSWSC 1097 .... 4.22 Waimiha Sawmilling Co Ltd v Waione Timber Co Ltd [1926] AC 101 .... 9.40, 11.21, 11.23, 11.24, 11.30 Wainwright v Miller [1897] 2 Ch 255 .... 6.12, 6.13 Wake v Hall (1883) 8 App Cas 195 .... 3.1 Walden v Hensler (1987) 163 CLR 561; 75 ALR 173 .... 1.6, 8.19 Walker Corporation Pty Ltd v Sydney Harbour Foreshore Authority (2008) 82 ALJR 489; [2008] HCA 5 .... 3.14 Walker v Dubord (1992) 92 DLR (4th) 257 .... 17.64 — v Hall [1984] FLR 126 .... 17.30 — v Linom [1907] 2 Ch 104 .... 10.13, 10.24 Wallis & Simmonds (Builders) Ltd [1974] 1 WLR 391, Re .... 16.28, 16.29, 16.31 Walsh v Lonsdale (1882) 21 Ch D 9 .... 1.12, 7.13, 7.14, 7.19 Walter v Handberg [2003] VSCA 122 .... 13.7 Waltons Stores (Interstate) Ltd v Maher (1988) 164 CLR 387; 76 ALR 513 .... 7.16, 7.17, 9.15 Wansborough v Maton (1836) 4 Ad & El 884 .... 3.2 Ward v James [1966] 1 QB 273 .... 7.31 — v Kirkland [1967] Ch 194 .... 14.12 — v Ward (1852) 7 Ex 838 .... 14.43, 14.44 Ward, Lock & Co v Operative Printers Assistants’ Society (1906) 22 TLR 327 .... 1.27 Waring (Lord) v London and Manchester Assurance Co Ltd (1935) 1 Ch 310 .... 16.46 lxxii

Warman International Ltd v Dwyer (1995) 182 CLR 544 .... 9.33 Warnborough Ltd v Garmite Ltd [2003] EWCA Civ 1544 .... 16.8 Warren v Keen [1954] 1 QB 15 .... 7.25 — v Lawton (No 3) [2016] WASC 285 .... 6.3, 6.7, 17.73 Washington Constructions Co Pty Ltd v Ashcroft [1982] Qd R 776 .... 11.41 Water Corporation v Hughes [2009] WASC 152 .... 4.7 Waterhouse v Power [2003] QCA 155 .... 9.27 Watson v Gass (1881) 51 LJ (Ch) 480 .... 17.42 Watt v Lord [2005] NSWSC 53 .... 17.47 Watts v Stewart [2016] EWCA Civ 1247 .... 1.13 Waverley Borough Council v Fletcher [1996] QB 334 .... 2.14, 2.15 Wayella Nominees Pty Ltd as Trustee for the DJ Gordon Family Trust v Cowden Ltd [2003] WASC 210 .... 14.35 We Are Here Pty Ltd v Zandata Pty Ltd [2010] NSW Conv 56-262 .... 11.69 Webb v Bird (1863) 13 CBNS 841 .... 14.15 — v Frank Bevis Ltd [1940] 1 All ER 247 .... 3.2 — v Ireland [1988] IR 353 .... 2.14, 2.17 Webb’s Lease, Re; Sandon v Webb [1951] 1 Ch 808 .... 14.22, 14.24 Webber v Lee (1882) 9 QBD 315 .... 9.11 Weber v Ankin [2008] NSWSC 106 .... 14.30 Websdale v S & JD Investments Pty Ltd (1991) 24 NSWLR 573 .... 16.40 Wegg Prosser v Evans [1894] 1 QB 108 .... 13.27 Weiland, Re (1945) 13 ABC 220 .... 17.62 Welldog Pty Ltd v Prox Pty Ltd [2017] WASCA 62 .... 16.47 Weller v Williams [2010] NSWSC 716 .... 13.22 Wells v Kingston-upon-Hull [1875] LR 10 CP 402 .... 1.12 Wells, Re; Swinburne-Hanham v Howard [1933] Ch 29 .... 16.4

Cases West Australia v Ward (No 3) (2015) 233 FCA 1 .... 8.27 West v Mead [2003] NSWSC 161 .... 9.27, 9.29 Westdeutsche Landesbank Girozentrale v Islington London Borough Council [1996] AC 669; [1996] 2 All ER 961 .... 9.4, 9.5, 9.33 Western Australia v Brown (2014) 306 ALR 168 .... 8.27 — v Manado (2020) 94 ALJR 352 .... 8.20 — v The Commonwealth .... 8.31, 8.42 — v Ward (2000) 99 FCR 316; 170 ALR 159; [2000] FCA 191 .... 5.9, 8.6, 8.16 — v — (2002) 213 CLR 1; 191 ALR 1; 76 ALJR 1098 .... 5.10, 8.15, 8.26, 8.27, 8.31, 8.47 — v Willis (2015) 239 FCR 175 .... 8.32 Westfield Holdings Ltd v Australian Capital Television Pty Ltd (1992) 32 NSWLR 194 .... 16.7, 16.8, 16.9, 16.27 Westfield Management Ltd v Perpetual Trustee Ltd (2007) 233 CLR 528 .... 14.38, 14.39, 14.40, 15.23, 15.43, 15.44 Westminster Bank Ltd v Lee [1956] Ch 7 .... 9.40, 13.27 Westpac Banking Corporation v Bell Group Ltd (in liq) (No 3) (2012) 44 WAR 1 .... 11.37, 16.43 — v Cronin (1990) 6 BPR 13,105 .... 16.28, 16.32 — v Dunn [2011] WASC 7 .... 13.12 — v Sansom (1994) 6 BPR 13,790 .... 17.73 Westpoint Corporation Pty Ltd v Registrar of Titles [2004] WASC 189 .... 15.21 Whaley, Re [1908] 1 Ch 615 .... 3.6 Wheeldon v Burrows (1879) 12 Ch D 31; 48 LJ Ch 853; 28 WR 196 .... 11.66, 11.67, 14.20, 14.25, 14.26, 14.27, 14.32, 14.33, 14.50 Wheeler v Baldwin (1934) 52 CLR 609 .... 2.11 Whiteley Ltd v Hilt [1918] 2 KB 808 .... 2.16 Wheeler v Horne (1851) Willes 208; 125 ER 1135 .... 17.42



Wheeler v JJ Saunders Ltd [1995] 2 All ER 697 .... 14.25 White v Betalli (2007) 71 NSWLR 381 .... 14.8, 15.2, 15.8 — v Bijou Mansions Ltd [1938] Ch 351 .... 15.37 — v Director of Public Prosecutions (2011) 243 CLR 478 .... 1.7 — v Garden (1851) 10 CB 919; 136 ER 364 .... 10.28 — v Tomasel [2004] 2 Qd R 438 .... 11.29, 11.37, 11.38 — v White [2001] 1 All ER 1; [2001] 1 AC 596 .... 17.30 White City Tennis Club Ltd v John Alexander’s Clubs Pty Ltd [2008] NSWSC 1225 .... 11.22 Whittlesea City Council v Abbatangelo (2009) 259 ALR 56; [2009] VSCA 188 .... 4.1, 4.10, 4.13, 4.15, 4.16 Wichniewicz v Registrar of Titles [2014] WASC 18 .... 13.7 Wickman Tools v Schuler AG (1974) AC 235 .... 7.37 Wicks v Bennett (1921) 30 CLR 80 .... 11.34 Wik Peoples v Queensland (1996) 187 CLR 1 .... 5.6, 7.3, 8.8, 8.21, 8.22, 8.23, 8.26, 8.27, 8.28, 8.29, 8.37, 8.42 Wilcox v Richardson (1997) 43 NSWLR 4 .... 14.25, 14.26 Wilken v Young 41 NE 68 (1895) .... 17.61, 17.62 Wilkes v Greenway (1890) 6 TLR 449 .... 14.19, 14.22 — v Spooner [1911] 2 KB 472 .... 10.21, 13.20 Wilkinson v Adam [1812] EngR 144; 1 V&B 422 .... 14.26 — v Haygarth (1847) 12 QB 837 .... 17.49 — v Kerdene Ltd [2013] EWCA Civ 44 .... 15.10 Wilks, Re [1891] 3 Ch 59 .... 17.65 Wilks, Re; Child v Bulmer [1891] 3 Ch 59 .... 17.50, 17.62 William Bkassini v Sonya Sarkis [2017] NSWSC 1487 .... 17.37 lxxiii



Australian Property Law

William Brandt’s Sons & Co v Dunlop Rubber Co Ltd [1905] AC 454 .... 17.56 Williams and Glyn’s Bank Ltd v Boland [1981] AC 487 .... 10.18 Williams v Attorney-General (NSW) (1913) 16 CLR 404 .... 5.6 — v Booth (1910) 10 CLR 341 .... 3.22, 3.23, 3.24, 3.25 — v Hensman (1861) 1 J & H 546; 70 ER 862; [1861] EngR 701 .... 17.2, 17.15, 17.50, 17.56, 17.62, 17.64, 17.65 — v Legg (1993) 29 NSWLR 687 .... 17.73 — v Lloyd (1934) 50 CLR 341 .... 17.56 — v Perpetual Trustee Co Ltd (1913) 17 CLR 469 .... 6.11, 6.12 — v Sinclair Refining Co Inc 39 NM 388, 47 P 2d 910 (1935) .... 17.36 — v State Transit Authority of NSW (2004) 60 NSWLR 286 .... 11.66, 14.4, 14.26, 14.35 — v Usherwood (1981) 45 P & Cr 235 .... 14.44 — v Williams [1881] Ch D 659 .... 2.4 — v Williams (1899) 68 LJ 528 .... 17.42 Williams-Ellis v Cobb [1935] 1 KB 310 .... 3.19 Willmott Growers Group Inc v Willmott Forests Ltd (Receivers and Managers Appointed) (in liq) (2013) 251 CLR 592 .... 7.37, 7.38 Willoughby v Willoughby (1787) 1 TR 763; 99 ER 1366 .... 13.27 Wilson v State Rail Authority of New South Wales (2010) 78 NSWLR 704; [2010] NSWCA 198 .... 3.14 Wilson, Re [2019] VSC 211 .... 13.3, 17.25, 17.64 Wiltshear v Cottrell (1853) 1 E & B 674 .... 3.2 Wily v Endeavour Healthcare Services Pty Ltd (2003) NSWCA 321; (2003) 12 BPR 22,447 .... 16.8 — v — (No 5) [2003] NSWSC 61; (2003) 11 BPR 21,081 .... 16.7, 16.8 Wily v St George Partnership Banking (1999) 84 FCR 423 .... 1.7 lxxiv

Winau Aust Pty Ltd v LCC Property Development Pty Ltd [2020] NSWSC 434 .... 11.16 Windella (NSW) Pty Ltd v Hughes (1999) NSW ConvR 57,326 .... 16.18 Winder, Ex parte (1877) 6 Ch D 696 .... 2.11 Winkfield, The [1902] P 42 .... 2.16 Winkler v Shamoon [2016] WLR 101 .... 17.57 Wirth v Wirth (1956) 98 CLR 228 .... 9.22, 9.26 WJ Alan and Co Ltd v El Nasr Export and Import Co [1972] 2 OB 189 .... 13.24 Wolfson v Registrar-General (NSW) (1934) 51 CLR 300 .... 11.4 Wollondilly Shire Council v Picton Power Lines Pty Ltd (1994) 33 NSWLR 551 .... 6.3, 6.6 Wollongong Coal Ltd v Gujarat NRE India Pty Ltd (2019) 372 ALR 165 .... 15.20 Wongala Holdings Pty Ltd v Mulinglebar Pty Ltd (1994) 6 BPR 13,527 .... 16.40 Wood v Leadbitter (1845) 13 M&W 838; 153 ER 351 .... 1.12, 1.13 — v LeBlanc (1904) 34 SCR 627 .... 4.10 — v Seely 32 NY 105 (1865) .... 14.29 Wood, Re [1894] 2 Ch 310 .... 6.15 Wood, Re [1894] 3 Ch 381 .... 6.16 Woodberry v Gilbert (1907) 3 Tas LR 7 .... 15.26 Woods v Mason Bros Ltd (1892) 8 WN (NSW) 114 .... 2.17 Woodson (Sales) Pty Ltd v Woodson (Aust) Pty Ltd (1996) 7 BPR 14,685 .... 17.73 Woolf v Associated Finance Pty Ltd [1956] VLR 51 .... 11.52 Woolfe v Freijahs’ Holdings Pty Ltd [1988] VR 1017 .... 14.45 Woolley, Re [1903] 2 Ch 206 .... 17.15 Woolworths Ltd v About Life Pty Ltd (2017) 18 BPR 36,983 .... 6.3 World Tech Pty Ltd v Yellowin Holdings Pty Ltd (1993) ANZ ConvR 121 .... 16.32 Wright v Gibbons (1949) 78 CLR 313; [1949] ALR 287 .... 17.2, 17.7, 17.15, 17.19,



Cases 17.50, 17.52, 17.53, 17.54, 17.56, 17.62, 17.67, 17.68 Wright, Ex Parte (1827) Ch D 255 .... 16.11 Wu v Glaros (1991) 55 SASR 408 .... 13.27 Wyman (on behalf of the Bijara People) v The State of Queensland (No 2) [2013] FCA 1229 .... 8.17 X

Xiao Hui Ying v Perpetual Trustees Victoria Ltd [2015] VSCA 124 .... 9.21 Xenous v Katsaras (2002) 7 VR 335 .... 17.25, 17.29 Y

Yandama Pastoral Co v Mundi Mundi Pastoral Co Ltd .... 8.23 Yanner v Eaton (1999) 201 CLR 351; 166 ALR 258 .... 1.6, 1.7, 1.21, 8.6, 8.19, 8.20, 8.31

Yard v Yardoo Pty Ltd [2006] VSC 109 .... 9.17, 9.21 Yazgi v Permanent Custodians Ltd [2007] NSWCA 306; 13 BPR 24,567 .... 11.16 Yearworth v North Bristol NHS Trust [2009] All ER (D) 33 (Feb); (2009) 107 BMLR 47; [2010] QB 1; [2009] 2 All ER 986; [2009] 3 WLR 118 .... 2.5 Yeomans v Yeomans [2006] 1 QdR 390 .... 6.20, 6.21 Yerkey v Jones (1939) 63 CLR 649 .... 13.27 Yip v Frolich (2003) 86 SASR 162 .... 14.45 York v Stone (1709) 1 Salk 158; 91 ER 146 .... 17.2, 17.15, 17.62 Young v Hoger [2001] QCA 453 .... 11.24 Z

Zapletal v Wright [1957] Tas SR 211 .... 5.17, 5.21, 5.22 Zappullo, Re [1967] VR 390 .... 17.7

lxxv



Statutes References are to paragraph numbers COMMONWEALTH Aboriginal Land Rights (Northern Territory) Act 1976 .... 3.19, 8.2 s 4(1) .... 3.19 s 70 .... 3.19 s 70(1) .... 3.19, 8.30 s 70(2A) .... 3.19 s 73(1)(b) .... 3.19 s 73(1)(d) .... 3.19 Acts Interpretation Act 1901 …. 3.14 s 15AB …. 3.14 Australian Consumer Law .... 3.12 s 2 .... 3.12 s 122 .... 3.12 s 141 .... 3.12 Bankruptcy Act 1924–1955 Pt XII .... 11.40 s 193 .... 11.40 Bankruptcy Act 1966 .... 17.67 s 120 .... 17.67 s 120(7) .... 17.67 s 121 .... 9.21, 17.67, 17.68 s 121(1) .... 17.67 s 121(1)(a) .... 17.67 s 121(1)(b) .... 17.67 s 121(2) .... 17.67 s 121(4) .... 17.67 s 121(5) .... 17.67 s 121(9) .... 17.67 s 121(9)(b) .... 17.67 s 122 .... 9.19, 17.67 s 122(8) .... 17.67 Bankruptcy Legislation Amendment Act 1996 …. 17.67 s 120 …. 17.67 s 121 …. 17.67 s 122 …. 17.67 Carbon Credits (Carbon Farming Initiative) Act 2011 .... 11.7, 14.4 s 39 .... 11.7, 14.4

ss 39–40 .... 11.7 s 40 .... 11.7, 14.4 s 150 .... 14.4 Commonwealth Act of 1912 Sch …. 1.27 Competition and Consumer Act 2010 Sch 2 .... 3.12 Constitution s 51(xxxi) .... 8.7, 8.42 s 74 .... 1.12 s 109 .... 1.6, 8.19 Corporations Act 2001 .... 9.41 s 127(1) .... 10.6 s 127(2) .... 10.6 s 130 .... 10.18 s 180 .... 16.48 s 420A .... 16.48 s 1013D .... 16.8 Evidence Act 1995 .... 8.14 Family Law Act 1975 s 79 .... 9.22 Fish and Oyster Act 1952 .... 8.31 Fisheries Act 1952 .... 8.31 Fisheries Act 1988 .... 3.19 Fishing Act .... 8.31 Income Tax Assessment Act 1936 s 160M(6) .... 17.67 National Consumer Credit Protection Act 2009 .... 16.33 s 35 .... 16.33 s 45 .... 16.33 Sch 1 .... 16.33 National Credit Code s 14 .... 16.33 s 15 .... 16.33 s 16 .... 16.33 s 17 .... 16.33 s 72 .... 16.33 National Security Act 1939 .... 8.29 Native Title Act 1993 .... 1.6, 3.19, 5.6, 8.11, 8.13, 8.14, 8.15, 8.17, 8.19, 8.20, 8.21, 8.22, 8.23, 8.26, 8.27, 8.29, 8.31, 8.33, 8.36, 8.38, 8.42, 8.43, 8.45, 8.46, 8.48 Pt 2 .... 8.16, 8.26 Pt 2 Div 2 .... 8.16, 8.42 lxxvii

 Native Title Act 1993 – cont’d Pt 2 Div 2A .... 8.16, 8.42 Pt 2 Div 2B .... 8.16, 8.26, 8.42 Pt 2 Div 3 .... 8.42, 8.43 Pt 2 Div 4 .... 8.42 Pt 2 Div 5 .... 8.42 Pt 2 Div 3 Subdiv B .... 8.38 Pt 2 Div 3 Subdiv C .... 8.38 Pt 2 Div 3 Subdiv D .... 8.38 Pt 2 Div 3 Subdiv E .... 8.38 Pt 2 Div 3 Subdiv F .... 8.38 Pt 2 Div 3 Subdiv G .... 8.38 Pt 2 Div 3 Subdiv H .... 8.38 Pt 2 Div 3 Subdiv I .... 8.38 Pt 2 Div 3 Subdiv J .... 8.38 Pt 2 Div 3 Subdiv K .... 8.38 Pt 2 Div 3 Subdiv L .... 8.38 Pt 2 Div 3 Subdiv M .... 8.38 Pt 2 Div 3 Subdiv P .... 8.40, 8.43 Pt 7 .... 8.35 Pt 8 .... 8.35 Pt 8A .... 8.35 s 3 .... 8.11 s 4 .... 8.42 s 6 .... 8.30 s 8 .... 8.28 s 11 .... 8.34 s 11(1) .... 8.27 s 12M(1)(b)(ii) .... 8.26 s 13 .... 8.35 s 14 .... 8.36 s 15 .... 8.36 s 15(1) .... 8.42 s 15(1)(a)–(b) .... 8.36, 8.48 s 15(1)(c) .... 8.36, 8.48 s 15(1)(d) .... 8.36, 8.48 s 17 .... 8.36, 8.42 s 17(1) …. 8.42 s 17(2) .... 8.36, 8.42 s 19 .... 8.36 s 20 .... 8.36, 8.42 s 20(1) .... 8.42 s 22F .... 8.37, 8.42 s 23A .... 8.26 s 23A(2) .... 8.29 lxxviii

Australian Property Law s 23B .... 8.42, 8.48 s 23C .... 8.48 s 23F .... 8.37, 8.48 ss 23F–23J .... 8.37 s 23G .... 8.48 s 23G(1) .... 8.37 s 23G(1)(b)(ii) .... 8.26 s 23G(2) …. 8.42 s 23J .... 8.29, 8.42 s 24AA .... 8.43, 8.48 s 24AA(3) .... 8.48 s 24AA(6) .... 8.48 ss 24BA–24EC .... 8.46 s 24CA .... 8.46 s 24CB .... 8.46 ss 24CB–CE .... 8.46 s 24CC .... 8.46 s 24CD .... 8.46 s 24CG(1) .... 8.46 s 24EA .... 8.46 s 24GA .... 8.37 s 24GB .... 8.37 s 24GB(1)(d)(i) .... 8.37 s 24GB(1)(d)(ii) .... 8.37 s 24GB(2) .... 8.37 s 24GB(3) .... 8.37 s 24GB(4) .... 8.37 s 24GB(4)(a) .... 8.37 s 24GB(4)(b) .... 8.37 s 24GB(6) .... 8.37 s 24GB(9) .... 8.37 s 24GC .... 8.37 s 24ID(1)(b) .... 8.43 s 24ID(3) .... 8.43 s 26(2) .... 8.45 s 26(3) .... 8.45 s 31 .... 8.45 s 33(1) .... 8.38 s 38(1)(c) .... 8.38 s 38(1B)(2) .... 8.38 s 50A .... 8.38 s 51 .... 8.36, 8.38, 8.42 s 51(1) .... 8.38, 8.42 s 51(2) .... 8.38, 8.42 s 51(3) .... 8.36, 8.42



Statutes s 51(4) …. 8.42 s 51(5)–(8) .... 8.42 s 51A .... 8.38, 8.42 s 51A(2) .... 8.38 s 53 .... 8.38, 8.42 s 61 .... 8.35 s 82 .... 8.14 s 82(1) .... 8.14 s 203BE .... 8.46 s 211 .... 1.6, 8.19, 8.31 s 211(1)(b) .... 8.31 s 211(2) .... 1.6, 8.9, 8.19, 8.20, 8.31 s 211(3) .... 8.31 s 212(1) .... 8.20 s 212(2) .... 8.20 s 212(3) .... 8.20 s 212 .... 3.19 s 223 .... 1.6, 8.12, 8.14, 8.16, 8.19, 8.34 s 223(1) .... 8.11, 8.12, 8.13, 8.14, 8.15, 8.16, 8.17, 8.18, 8.30, 8.31, 8.42 s 223(1)(a) .... 8.16, 8.27 s 223(1)(a)–(c) .... 8.13 s 223(1)(b) .... 8.16, 8.26, 8.27, 8.43 s 223(1)(c) .... 8.14, 8.26 s 232A .... 8.37, 8.43 s 232C .... 8.37 s 225 .... 8.14, 8.35 s 225(c) .... 8.26 s 227 .... 8.31 s 228 .... 8.36, 8.42 s 229 .... 8.36 s 229(2) .... 8.36 s 229(3) .... 8.36 s 230 .... 8.36, 8.48 s 230(d)(i) .... 8.26 s 231 .... 8.36, 8.48 s 232 .... 8.36, 8.42, 8.48 s 232A–232D .... 8.48 s 233 .... 8.48 s 237 .... 8.45 s 238 .... 8.36, 8.48 s 240 .... 8.36 ss 246–249 .... 8.39 s 247B .... 8.37 s 248B .... 8.37

s 251A .... 8.46 s 251A(1) .... 8.46 s 251A(2) .... 8.46 s 251D .... 8.26 s 253 .... 8.30, 8.36, 8.37 Native Title Amendment Act 1998 .... 8.14 Pearl Fisheries Act 1952 .... 8.31 Personal Property Securities Act 2009 .... 2.16, 2.20, 2.21, 2.24, 3.14, 3.15, 3.17 Pt 4.3 Div 3 .... 2.20 Pt 4.3 Div 4 .... 2.20 s 8 .... 2.20 s 8(i)(j) .... 3.14 s 8(l)(j) .... 3.11, 3.14 s 10 .... 2.20, 3.11, 3.14 s 12 .... 2.20, 3.15 s 12(1) .... 2.20 s 13(1) .... 3.14 s 19(1) .... 2.16 s 19(2) .... 2.16 s 19(5) .... 2.16 s 20 .... 2.20 s 20(1)(a) .... 2.16 ss 21–22 .... 2.20 s 21(2)(c) .... 2.20 ss 23–24 .... 2.20 ss 25–29 .... 2.20 ss 43–59 .... 2.20 s 55 .... 2.20 ss 55–61 .... 2.20 s 55(2) .... 2.20 s 55(3) .... 2.20 s 55(4) .... 2.20 s 57 .... 2.20 s 73 .... 2.20 s 87 .... 3.11 s 88 .... 3.11 s 89 .... 3.11 s 90 .... 3.11 s 99 .... 3.11 s 115(1) .... 2.20 s 116 .... 2.20 ss 123–124 .... 2.20 s 126 .... 2.20 s 147 .... 2.20 lxxix



Australian Property Law

Personal Property Securities Act 2009 – cont’d ss 153–61 .... 2.20 s 267 .... 3.14 s 300 .... 10.18 Racial Discrimination Act 1975 .... 1.6, 2.11, 8.3, 8.7, 8.19, 8.21, 8.23, 8.26, 8.33, 8.36 Pt 2 .... 8.26 s 10(1) …. 8.42 Seas and Submerged Lands Act 1973 s 6 .... 8.30 Water Act 2007 .... 3.21 AUSTRALIAN CAPITAL TERRITORY Administration and Probate Act 1929 .... 1.29 Civil Law (Property Act) 2006 Ch 3 .... 16.13 s 201 .... 9.9, 15.29 s 201(4)(a) .... 9.11 s 202 .... 10.2 s 203(1) .... 7.4 s 203(1)(d) .... 9.14 s 205 .... 15.29 s 219(1) .... 10.5 s 219(3) .... 10.3 s 243 .... 17.72 s 301(1)(a) .... 16.39 s 304(1) .... 16.45 s 317 .... 16.2 s 400 .... 7.35 s 438 .... 2.23 Electronic Conveyancing National Law (ACT) Act 2020 .... 12.3 Forfeiture Act 1991 s 3 .... 17.70 Human Rights Act 2004 s 27 .... 8.20 Land Titles Act 1925 .... 11.2 Div 10.3 .... 16.16 s 14(1)(e) .... 11.78 s 43 .... 11.2 s 47A(1) .... 16.37 s 54(1) .... 17.18 s 57 .... 11.4 s 58(a) .... 11.59 s 58(c) .... 11.59 s 58(d) .... 11.70 lxxx

s 58(1)(b) .... 11.5 s 58(1)(d)–(e) .... 11.5 s 59 .... 11.7, 11.18 s 93 .... 16.15 s 94 .... 16.39 s 94(1) .... 16.40 s 96 .... 16.36 s 103E(3) .... 14.41 s 104 .... 13.6 s 110 .... 15.4 s 123 .... 11.13 s 124 .... 11.4, 13.1 ss 143–51 .... 11.71 ss 154–55 .... 11.71 s 154(1)(a) .... 11.71, 11.77 s 154(1)(b) .... 11.72 s 154(1)(d) .... 11.76 s 159 .... 11.6 Perpetuities and Accumulations Act 1985 s 8(1) .... 6.17 s 9 .... 6.17, 6.21 s 10(1) .... 6.13 s 18 .... 6.17 Real Property Act 1925 s 109(1) .... 15.14 s 120(d) .... 7.36 Real Property Amendment (Compensation) Act 2000 .... 11.71 Pt 14 .... 11.74 NEW SOUTH WALES Aboriginal Land Rights Act 1983 .... 8.5 s 40(2) .... 11.57 Agricultural Tenancies Act 1990 s 10 .... 3.8 Civil Procedure Act 2005 s 20 .... 2.23 Coastal Management Act 2016 s 28 .... 3.24 Common Law Procedure Act 1899 .... 1.12 s 95 .... 1.12 s 95(1) .... 1.12 s 97 .... 1.12 s 97(1) .... 1.12 Constitution Act 1855 s 2 .... 5.6

Statutes Conveyancing Act 1900 s 89 .... 14.3 Conveyancing Act 1919 .... 10.4, 11.36, 12.4, 14.4, 14.39, 14.44, 16.39 Pt 7 .... 16.13 Pt 7, Div 3 .... 16.16 s 3 .... 12.4 s 5(1)(d) .... 7.36 s 6(1) .... 17.18 s 7(1) .... 17.56 s 12 .... 15.29, 16.37 s 16 .... 5.20 s 19A .... 5.11 s 23B .... 10.2 s 23C .... 9.9 s 23C(2) .... 9.11 s 23D .... 10.2 s 23D(2) .... 7.4 s 23E(d) .... 9.14 s 24 .... 17.56 s 25 .... 17.7 s 26 .... 17.18, 17.19, 17.21, 17.24, 17.25 s 26(1) .... 17.18, 17.19, 17.20, 17.25 s 26(2) …. 17.18 s 30 .... 17.65 s 35 .... 17.7 s 36C .... 15.4 s 38 .... 17.56 s 38(1) .... 10.5 s 38(3) .... 10.3 s 44(2) .... 5.20 s 46 .... 10.4 s 47 .... 5.12 s 47(3) .... 5.12 s 43 .... 15.43 s 52A .... 3.27 s 53(1) .... 10.7, 11.1 s 54A .... 9.9, 9.10, 9.11 s 55(2A) .... 9.36 s 66 .... 17.42 s 66G .... 17.41, 17.42, 17.43, 17.72, 17.73 s 66G(4) .... 17.73 s 67 .... 14.29 s 70 .... 15.14 s 70(1) .... 15.26, 15.32



s 70A .... 15.22 s 70A(1) .... 15.26 s 78(1)(c) .... 16.13 s 82 .... 11.4 s 88 .... 14.39, 15.32, 15.43 s 88(1) .... 15.26, 15.32, 15.41, 15.43 s 88(1)(c) .... 15.46 s 88(3) .... 15.26, 15.43 s 88(3)(a) .... 15.22, 15.46 s 88AB(1) .... 14.4 s 88B .... 14.39, 15.8, 15.46 s 88B(2) .... 14.39 s 88B(3)(c) .... 14.39, 15.8, 15.46 s 88K .... 14.23 s 88K(1) .... 14.23 s 88K(2) .... 14.23 s 88K(2)(c) .... 14.23 s 88K(3) .... 14.23 s 89 .... 14.39, 14.41, 14.44, 14.46, 15.46 s 89(1) .... 14.41, 15.46 s 89(1)(a) .... 14.47 s 89(1)(b) .... 14.41, 14.43, 14.46 s 89(3) .... 14.43, 14.46 s 93(1) .... 16.2 s 96 .... 17.56 s 97 .... 14.23 s 103(2) .... 16.48 s 109 .... 9.40 s 109(1) .... 16.39 s 109(1)(c) .... 16.48 s 110 .... 9.40 s 111 .... 9.40 s 112(3) .... 16.45 s 112(3)(a) .... 9.40, 16.46 s 112(3)(b) .... 16.46 s 117 .... 7.35, 7.37 s 127 .... 7.2 s 127(1) .... 7.2 ss 128–31 .... 7.37 s 164 .... 10.18 s 164(1)(b) .... 10.18 s 178 .... 14.35 s 179 .... 14.35 s 181A .... 14.39 s 181A(3) .... 14.39 lxxxi



Australian Property Law

Conveyancing Act 1919 – cont’d s 181A(4) .... 14.39 ss 184A–184J .... 11.1 s 184G .... 11.1 Conveyancing (Amendment) Act 1930 .... 14.39, 17.42 Conveyancing and Law of Property Act 1898 .... 10.4 s 119 .... 17.7 Crimes Act 1900 Pt 15A .... 17.36 s 562 .... 17.36 s 562B .... 17.36 s 562D(1)(b) .... 17.36 s 562D(2)(a) .... 17.36 Crown Lands Act 1889 .... 8.23 Crown Lands Act 1989 .... 3.26 s 170 .... 4.7 s 172(7) .... 3.20 Crown Lands Alienation Act 1861 .... 5.6 Crown Lands Occupation Act 1861 .... 5.6 De Facto Relationships Act 1984 .... 17.42 Dividing Fences Act 1991 ss 6–7 .... 3.29 Duties Act 1997 s 30(1) .... 17.19 .... 17.42 Electronic Conveyancing (Adoption of National Act) 2012 .... 5.12, 5.21, 10.6, 12.3, 12.19, 13.4 App .... 10.6 Electronic Conveyancing National Law (NSW) .... 10.6, 11.75, 12.2, 12.3, 12.4, 12.5, 12.6, 12.7, 12.9, 12.12, 12.14, 12.15, 12.17, 12.18, 12.19, 12.20, 12.23, 12.29, 12.36, 12.37 s 3(1) .... 10.6 s 5(1)(b) .... 12.19 s 7 .... 10.6 s 9 .... 5.12, 5.21, 10.6 s 9(1) .... 12.12 s 9(2) .... 12.12 s 9(3) .... 12.12 s 10 .... 12.9 s 11 .... 12.9 s 11(2) .... 12.12 s 12 .... 10.6, 12.14, 12.15 s 12(1) .... 12.12, 12.15 s 12(4) .... 10.6 lxxxii

s 23 .... 12.5 Encroachment of Buildings Act 1922 .... 3.30 s 3(2) .... 3.30 Environmental Planning and Assessment Act 1979 .... 11.54, 11.55 s 28 .... 15.46 s 76A .... 11.54 s 123 .... 11.54 Forfeiture Act 1995 s 5 .... 17.70 Imperial Acts Application Act 1969 .... 5.20, 17.43 s 32 .... 5.13, 7.26 Industrial Arbitration Act 1940 .... 11.53 s 88B .... 11.53, 11.56 Interpretation Act 1987 s 34(1)(b)(i) .... 17.19 s 34(2)(a) .... 17.19 s 35(2) .... 17.19 s 35(5) .... 17.19 Land and Environment Court Act 1979 s 40 .... 14.23 Land Titles Registration and Transfer Act 1862 .... 13.17 Lands for Public Purposes Acquisition Act 1880, 44 Vict No 16 .... 2.9 Limitation Act 1969 .... 4.14 s 11(3)(a) .... 4.22 s 27(1) .... 4.7 s 27(2) .... 4.7 s 31 .... 4.8 s 47 .... 4.8 s 52(1)(e) .... 4.22 s 55 .... 4.22 Local Government Act 1919 .... 14.22 s 398 .... 11.49, 11.50, 11.51, 11.56 Local Government Act 1993 .... 11.56 s 45 .... 11.55, 11.57 s 45(1) .... 11.56, 11.57 Mining Act 1906 .... 8.23 s 16 .... 8.28 Minors (Property and Contracts) Act 1970 .... 11.52 Money-lenders and Infants Loans Act 1941 .... 9.40 Perpetuities Act 1984 .... 6.12, 6.19 s 3(1) .... 6.12



Statutes s 4(1) .... 6.12 s 7(1) .... 6.17 s 8 .... 6.17, 6.21 s 9(4) .... 6.21 s 14(2) .... 6.12, 6.13 s 15(a) .... 6.13 s 15(b) .... 6.13 s 17 .... 6.17 Property (Relationships) Act 1984 .... 9.22 s 4 .... 9.22 s 5 .... 9.22 Public Works Act 1900 .... 2.9 Real Property Act 1900 .... 3.23, 4.23, 9.40, 11.2, 11.4, 11.42, 11.50, 11.53, 11.54, 11.55, 11.56, 11.57, 11.66, 11.69, 12.4, 12.21, 12.29, 13.2, 13.3, 13.7, 13.12, 13.17, 13.18, 13.19, 13.20, 13.21, 13.23, 13.24, 14.4, 14.22, 14.26, 14.29, 14.39, 16.15, 16.17, 16.37, 17.18, 17.56 Pt 2 .... 12.4 Pt 6A .... 4.23, 11.5 Pt 7B .... 13.5 Pt 9 .... 13.2 Pt 14 .... 11.76 Pt 15 .... 14.39 s 2 .... 13.2 s 2(4) .... 13.2 s 3 .... 14.29, 16.39 s 3(1) .... 14.39 s 3A .... 11.4 s 3A(5) .... 12.4 s 31B .... 14.39 s 31B(2) .... 14.39 s 6 .... 11.50 s 8(1)(a) .... 13.19 s 12 .... 11.65 s 12(1)(d) .... 11.65, 11.78 s 12(1)(f) .... 13.19 s 12(6) .... 12.4 s 12A(1) .... 11.65 s 12A(3) .... 11.65 s 12E .... 12.4 s 13D(1) .... 8.5 s 28EA .... 11.1 s 31B(2) .... 13.17 s 31B(3) .... 11.2

s 32(6) .... 11.65 s 32(7) .... 13.17 s 33AAA .... 12.28 s 33AB .... 12.1, 12.21 s 36(1) .... 13.21 s 36(3) .... 13.21 s 39 (1A) .... 16.19 s 40 .... 14.29 s 41 .... 11.4, 11.65, 13.2, 13.21, 17.56 s 41(1) .... 11.4 s 42 .... 9.40, 11.6, 11.27, 11.28, 11.43, 11.44, 11.47, 11.52, 11.55, 11.56, 11.67, 13.21, 14.26, 14.29, 14.35 s 42(b) .... 11.64 s 42(1) …. 11.27, 11.28, 11.36, 11.54, 11.64, 11.66, 11.67, 14.26, 17.56 s 42(1)(a) .... 11.5, 11.59 s 42(1)(a1) .... 11.64, 11.65, 11.67, 14.26 s 42(1)(a)–(d) .... 11.27, 11.56 s 42(1)(b) .... 11.67, 14.4, 14.26 s 42(1)(c) .... 11.44, 11.59 s 42(1)(d) .... 11.5 s 42(3) .... 11.49 s 43 .... 9.40, 11.7, 11.18, 11.42, 11.44, 11.52, 11.67, 13.21, 14.26 s 43(2) .... 13.24 s 43A .... 13.4, 13.19, 13.20, 13.21, 13.22 s 43A(1) .... 13.20, 13.21 s 44 .... 13.2 s 45C .... 4.23 s 45D .... 4.23, 11.62 s 45D(1) .... 4.3, 4.23, 11.62 s 45D(3) .... 11.62 s 45D(4) .... 11.62 s 46 .... 11.67, 14.17, 14.26 s 47 .... 11.67, 14.17, 14.26, 14.29, 14.39 s 47(6) .... 14.41 s 47(7) .... 14.48 s 48 .... 13.2 s 49(a) .... 11.52 s 49(1) .... 11.65 s 51 .... 16.37 s 52 .... 16.37 s 52(1) .... 16.37 s 53(5) .... 11.56 lxxxiii



Australian Property Law

Real Property Act 1900 – cont’d s 56(6) .... 16.19 s 56C .... 11.14, 12.19, 16.19 s 56C (5)(b) .... 16.19 s 57 .... 16.15 s 57(2)(b) .... 16.40 s 57(3) .... 16.40 s 58 .... 9.40, 16.39 s 59 .... 9.40 s 60 .... 16.15, 16.36 s 61 .... 16.48 s 72 .... 13.2 s 74 .... 13.21 s 74F .... 13.6, 13.18 s 74F(1) .... 13.7 s 74H .... 13.17 s 74J .... 13.7 s 74K .... 13.7 s 74MA .... 13.7 s 74P .... 13.7 s 74P(1) .... 13.7 s 74P(1)(a) .... 13.7 s 74W .... 13.5 s 82 .... 13.1, 13.2 s 83 .... 13.19 s 86 .... 13.2 s 95(4) .... 11.4 s 96B .... 14.39 s 96D .... 11.54 s 98 .... 13.7 s 100 .... 17.18, 17.19, 17.21 s 100(1) …. 11.27, 11.28, 17.18, 17.19, 17.20 s 100(2) .... 11.27 s 100(3) …. 11.27 s 107 .... 13.2 s 108 .... 13.2 s 108(3) .... 12.15 s 110 .... 11.75 s 111 .... 11.76, 13.19 s 111(3) .... 11.76 s 118 .... 11.27, 11.28 s 118(1) .... 11.27 s 118(1)(d) …. 11.27 s 118(1)(d)(i) .... 11.27 s 118(1)(d)(ii) .... 11.27, 11.28 lxxxiv

s 120 .... 11.71 s 120(1)(b) .... 11.76 s 122 .... 11.65 s 122(1) .... 11.65 s 124(d) .... 11.44 s 124(e) .... 11.44 s 126 .... 11.74 s 128–35 .... 11.71 s 129 .... 11.74 s 129(1) .... 11.74, 11.76 s 129(1)(d) .... 11.72 s 129(1)(e) .... 11.73, 11.74 s 129(2) .... 11.76 s 129(2)(b)(i) .... 11.77 s 131 .... 11.76 s 132(1) .... 11.74 s 132(2) .... 11.74 s 133(4) .... 11.74 s 134(4) .... 11.76 s 135 .... 11.44, 11.76 s 136 .... 11.65 ss 136–138 .... 14.39 s 138 .... 11.65 Sch 5 .... 13.21 Sch 16 .... 13.2, 13.19 Real Property Act 1919 .... 11.53 s 57(1) .... 16.15 Real Property (Amendment) Act 1921 s 14 .... 11.50, 11.56 Real Property Regulation 2003 reg 6(1) .... 17.19 Residential Tenancies Act 2010 ss 32–34 .... 7.28 ss 38–39 .... 7.28 s 41 .... 7.28 s 44 .... 7.28 ss 50–52 .... 7.28 s 55 .... 7.28 s 63 .... 7.28 Roads Act 1993 .... 11.56 s 7(4) .... 11.56 s 145(3) .... 11.56 Supreme Court Act 1970 s 79 .... 2.23 Trustee Act 1925 s 9 .... 17.5

Statutes Water Management Act 2007 .... 3.21 s 3 .... 3.21 s 5 .... 3.21 s 392 .... 3.21 s 393 .... 3.21 Water Rights Act 1896 s 2 .... 3.21 Wills, Probate and Administration Act 1898 s 5 .... 5.13 NORTHERN TERRITORY Electronic Conveyancing (National Uniform Legislation) Act 2013 .... 12.3, 12.29 Encroachment of Buildings Act 1922 .... 3.30 Fisheries Act 1988 .... 3.19, 8.30 Land Title Act 2000 .... 11.2 Pt 6, Div 3 .... 16.16 s 6 .... 11.2 s 17(1)(a) .... 11.78 s 62(2) .... 16.37 s 74 .... 16.15 s 77 .... 16.28 s 80 .... 16.36, 16.39, 16.40 s 112 .... 15.46 s 125 .... 13.1 s 138 .... 13.6 s 142 .... 13.6 s 184 .... 11.4, 11.6 s 188(2)(a) .... 11.7 s 189(1) .... 11.59 s 189(1)(b) .... 11.5 s 189(1)(c) .... 11.5 s 189(1)(f) .... 11.59 s 189(3) .... 11.64 s 191 .... 11.18 ss 192–96 .... 11.71 s 192(1)(a) .... 11.73 s 192(1)(b) .... 11.76 s 193(1)(a)(b) .... 11.72 s 195(1)(b) .... 11.77 s 197 .... 9.24 Law of Property Act 2000 Pt 7 .... 16.13 s 5(c) .... 9.14 s 10 .... 9.9, 15.29 s 10(2) .... 9.11



s 11 .... 10.2 s 22 .... 5.11 s 29 .... 5.12 s 30 .... 5.14 s 30(2) .... 7.4 s 47(1) .... 10.5 s 47(2)(b) .... 10.3 s 56 .... 15.4 s 86(a) .... 16.39 s 90 .... 16.41 s 91(2) .... 16.42 s 109 .... 16.2 s 113 .... 16.2 ss 136–43 .... 7.37 s 163 .... 14.23 s 164 .... 14.23 s 170 .... 15.14 s 171 .... 15.22 s 177 .... 14.41 s 182 .... 15.29 s 187 .... 6.17 s 187(1) .... 6.17 s 187(2) .... 6.17 s 189 .... 6.15 s 190 .... 6.17 s 191 .... 6.21 s 197 .... 6.13 s 199 .... 6.17 s 217 .... 17.7 Minerals (Acquisition) Act 1953 s 3 .... 3.26 Mining Act 1980 s 185 .... 3.5 Property Law Act 1974 .... 3.30 s 34 .... 17.7 s 35 .... 17.18 s 36 .... 17.18 s 37A .... 17.72 s 37B .... 17.72 s 57(1) .... 17.18 Real Property Act s 125(3) .... 7.36 Validation Act 1994 .... 11.14 Water Act 1992 s 9 .... 3.20 lxxxv



Australian Property Law

QUEENSLAND Crown Lands Alienation Act 1876 s 91 .... 8.23 Electronic Conveyancing National Law (Queensland) Act 2013 .... 12.3, 12.29 Fauna Conservation Act 1974 .... 1.6, 1.7, 8.19, 8.20 s 5 .... 1.6 s 7 .... 1.6, 8.19 s 7(1) .... 1.6, 8.19 s 7(2) .... 1.6, 8.19 s 54(1)(a) .... 1.6, 8.19 s 54(1)(b) .... 1.6, 8.19 s 67 .... 1.6, 8.19 s 69 .... 1.6, 8.19 s 70 .... 1.6, 8.19 s 71 .... 1.6, 8.19 s 7(1) .... 8.19 s 71(2) .... 1.6, 8.19 s 83 .... 1.6, 8.19 s 83(3) .... 1.6, 8.19 s 84 .... 1.6, 8.19 Fish and Oyster Act 1914 .... 8.31 Fisheries Act 1877 .... 8.31 Forestry Act 1959 s 61J(5) .... 14.4 Justices Act 1886 .... 1.6 Land Act 1910 .... 8.23 Pt III .... 8.23 Pt III Div I .... 8.23 Pt III Div II .... 8.23 Pt VI Div VI .... 8.23 s 6 .... 8.23 s 6(1) .... 8.23 s 6(2) .... 8.23 s 40(2) .... 8.23 s 41(4) .... 8.23 s 42 .... 8.23 s 43 .... 8.23 s 45 .... 8.23 s 47 .... 8.23 s 203 .... 8.23 s 204 .... 8.22 Land Act 1962 .... 8.23 Pt III, Div I .... 8.23 lxxxvi

Pt VI, Div I .... 8.23 s 4(2) .... 8.23 s 6(1) .... 8.23 s 49(1) .... 8.23 s 53(1) .... 8.23 s 62(1) .... 8.23 s 135 .... 8.23 s 299(1) .... 8.23 s 299(2) .... 8.23 s 372 .... 8.23 Land Act 1994 .... 3.19 s 9 .... 3.19 s 10 .... 3.19 s 14C .... 12.15 s 99 .... 4.3 s 107(1) .... 4.23 s 185(1)(d) .... 4.23 Sch 6 .... 3.19 Land Title Act 1994 .... 11.2, 11.41, 11.59, 11.63, 16.26, 17.67 Pt 6, Div 3 .... 16.16 Div 4B .... 14.4 s 4 .... 11.70 s 8 .... 11.2 s 11A .... 11.14 s 11A(2) .... 11.14, 12.19, 16.18 s 11B(2) .... 11.14, 12.19, 16.18 s 15(1)(a) .... 11.78 s 15(3) .... 11.78 s 37 .... 17.67 s 38 .... 17.67 s 42 .... 11.41 s 42(1) .... 11.2 s 43 .... 11.37 s 45 .... 11.37 s 54(2) .... 17.18 s 57 .... 17.67 s 59 .... 17.68 s 59(1) .... 17.67, 17.68 s 60 .... 17.67 s 62 .... 16.37 s 62(1) .... 16.37, 17.67 s 62(4) .... 16.37 s 75 .... 16.26, 16.28 s 78 .... 16.36, 16.39, 16.40



Statutes s 78(2) .... 16.48 s 90(1) .... 14.41 s 112 .... 13.1 s 122 .... 13.6 s 126(4) .... 13.6 s 165 .... 11.41 s 170(1)(b) .... 11.70 s 176 .... 10.3, 16.11 s 178(3) .... 11.7, 11.18 s 181 .... 11.4 s 184 .... 11.6, 11.37 s 184(2)(a) .... 11.7, 11.18 s 185(1A) .... 11.14, 12.19, 16.18 s 185(1)(a) .... 11.33, 11.38 s 185(1)(b) .... 11.5 s 185(1)(c) .... 11.5 s 185(1)(d) .... 11.5, 11.63 s 185(1)(e) .... 11.59 s 185(1)(g) .... 11.59 s 185(2) .... 11.5 s 185(3) .... 11.64 s 186 .... 11.59 ss 188–90 .... 11.71 s 188A(3) .... 11.59 s 188(1)(b) .... 11.72, 11.76 s 189(1)(b) .... 11.77 s 191 .... 9.24 Law of Property Act s 12 .... 7.35 Limitation of Actions Act 1974 .... 4.14, 4.23 s 5(2) .... 4.22 s 6(4) .... 4.7 s 13 .... 4.7 s 15(2) .... 4.8 s 38 .... 4.22 s 39(1) .... 4.22 Mineral Resources Act 1989 s 8 .... 3.26 National Parks and Wildlife Act 1975 .... 1.6 Neighbourhood Disputes (Dividing Fences and Trees) Act 2011 .... 3.30 s 20 .... 3.29 s 21 .... 3.29 s 21(2) .... 3.29 s 52 .... 3.30

Petroleum Act 1923 .... 8.23 Planning (Urban Encroachment) Act 2008 .... 3.30 Property Law Act 1974 .... 5.20, 16.26 Pt 4 Div 2 .... 17.72 Pt 7 .... 16.13 s 5(1)(b) .... 16.26 s 6(d) .... 9.14 s 7 .... 5.20 s 10 .... 10.2 s 10(2) .... 7.4 s 11 .... 9.9, 15.29, 16.26 s 11(1)(a) .... 16.26 s 11(2) .... 9.11 s 12 .... 10.2 s 22 .... 5.11 s 29 .... 5.12 s 30 .... 5.14, 5.20 s 34 .... 17.7 s 35 .... 17.18, 17.25 s 36 .... 17.18 s 45(2) .... 10.3, 10.5 s 53 .... 15.14 s 53(1) .... 15.14 s 55 .... 15.4 s 59 .... 9.9, 16.26 s 61 .... 3.27 s 75 .... 16.26 s 75(2) .... 16.26 s 82 .... 10.20 s 83(1)(a) .... 16.39 s 83(1)(c) .... 16.48 s 84(1) .... 16.40 s 85 .... 16.41 s 85(1) .... 16.41, 16.42 s 87 .... 16.45 s 94 .... 16.2 s 99(2) .... 16.48 s 107(d) .... 7.36 s 117 .... 7.35 s 123 .... 7.37 s 128 .... 7.37 s 129 .... 7.2 s 155 .... 3.8 s 155(2) .... 3.8 lxxxvii



Australian Property Law

Property Law Act 1974 – cont’d s 180 .... 14.23 s 181 .... 14.41, 15.46 s 185 .... 3.30 s 196 .... 3.30 s 199 .... 15.29 s 200 .... 17.57 s 209 .... 6.17 s 209(1) .... 6.17 s 210 .... 6.17 s 212 .... 6.15 s 213 .... 6.21 s 215 .... 6.17 s 218(1) .... 6.13 s 237(1) .... 10.7, 11.1 ss 241–49 .... 11.1 s 250(1) .... 11.1 s 256 .... 10.18 s 346(1)(b) .... 10.18 Real Property Act 1861 .... 11.2 s 43 .... 7.14 s 129(1) .... 7.14 Real Property Act 1877 s 30 .... 16.26 s 35 .... 13.17 s 48 .... 11.13 Real Property Act Amendment Act 1877 .... 13.2 Retail Shop Leases Act 1994 .... 7.28 s 3 .... 7.28 s 22 .... 7.28 s 22A .... 7.28 ss 24–25 .... 7.28 s 27 .... 7.28 Stamp Act 1894 .... 11.13, 11.13 s 33 .... 11.13 s 44 .... 11.13 s 53(5) .... 11.13 s 96 .... 11.13 s 123 .... 11.13 s 124 .... 11.13 s 124(d) .... 11.13 s 125 .... 11.13 Succession Act 1981 s 8 .... 5.13 lxxxviii

s 65 .... 17.7 Supreme Court Act 1995 .... 2.23 Uniform Civil Procedure Rules r 22 .... 16.48 Water Act 2000 .... 3.21 Pt 3, Div 2 .... 3.21 s 5A .... 3.20 s 26 .... 3.21 SOUTH AUSTRALIA Electronic Conveyancing National Law (South Australia) Act 2013 .... 12.3, 12.29 Encroachments Act 1944 .... 3.30 Fences Act 1975 s 5 .... 3.29 Fisheries Act 1971 .... 8.32 Forest Property Act 2000 s 7(2) .... 14.4 s 7(3) .... 14.4 s 12 .... 14.4 Landlord and Tenant Act 1936 s 4 .... 7.37 s 5 .... 7.37 s 7 .... 7.37 s 9 .... 7.37 Law of Property Act 1936 .... 2.23, 17.56 Pt 4 .... 16.13 Pt 8 .... 17.72 s 24C .... 17.7 s 25 .... 5.20 s 26(1) .... 9.9 s 28 .... 10.2 s 29 .... 9.9 s 29(2) .... 9.11 s 30 .... 10.2 s 30(2) .... 7.4 s 31(d) .... 9.14 s 34 .... 15.4 s 37 .... 5.12, 7.35 s 41 .... 17.56 s 41(2) .... 10.5 s 41(5)(b) .... 10.3 s 44 .... 16.48 s 44(2) .... 16.48 s 47(1)(c) .... 16.48 s 49(2) .... 16.45



Statutes s 60 .... 6.21 s 61 .... 6.17 s 62 .... 6.17, 6.23 s 117 .... 10.18 Limitation of Actions Act 1936 .... 4.14, 4.22 s 4 .... 4.7 s 9 .... 4.8 s 45(1) .... 4.22 s 45(2) .... 4.22 Mining Act 1971 s 16 .... 3.26 Real Property Act 1857 .... 11.23, 13.17 s 39 .... 11.23 Real Property Act 1858 .... 11.2 Real Property Act 1886 .... 8.29, 11.2, 11.13, 11.14, 11.44, 11.50, 11.56, 13.2, 13.3, 15.43 Pt XI .... 11.15 Pt 12 .... 16.16 Pt 13A .... 13.5 s 3 .... 11.50 s 3(1) .... 15.43 s 3(2) .... 15.43 s 6 .... 11.56 s 10 .... 11.50 s 25 .... 8.29 s 50 .... 8.29 s 51B .... 11.2, 11.4, 15.43 s 54 .... 11.15 s 56 .... 11.15 s 57(3) .... 10.3, 16.11 s 65 .... 15.43 s 67 .... 11.4, 11.50 s 68 .... 11.21 s 69 .... 11.6, 11.15, 11.25, 15.43, 11.50, 11.60 s 69(b) .... 11.18, 11.22, 11.60 s 69(c) .... 11.59 s 69(d) .... 11.5 s 69(e) .... 11.59 s 69(f) .... 11.63, 11.63 s 69(h) .... 11.5, 11.70 s 69VI .... 4.23, 11.5 s 70 .... 11.6, 11.50 s 71 .... 11.50 s 74 .... 17.18 s 80A .... 4.3

s 80A–80I .... 11.5 s 90B(10) .... 14.41 s 116 .... 11.15 s 117 .... 11.15 s 119 .... 11.15 s 125(3) .... 7.36 s 128 .... 15.11, 15.22 s 131 .... 16.2 s 132 .... 16.15, 16.39 s 133 .... 16.39, 16.40 s 134 .... 11.21 s 137 .... 16.36 s 149 .... 16.28 s 150 .... 16.38 s 151 .... 16.15 s 162 .... 11.4, 13.1 s 187 .... 11.7, 11.18 s 191 .... 13.6 s 191(e) .... 13.6 s 191(f) .... 13.6 ss 201–05 .... 11.71 s 203 .... 11.72, 11.73, 11.76 ss 203–05 .... 11.77 s 207–19 .... 11.71 s 220(f) .... 11.78 s 251 .... 11.5 Real Property (Registration of Titles) Act 1945 .... 11.1 Registration of Deeds Act 1935 .... 11.1 s 10(1) .... 11.1 TASMANIA Acts Interpretation Act 1931 s 8B(1) .... 16.42 Boundary Fences Act 1908 s 8 .... 3.29 Conveyancing and Law of Property Act 1884 Pt IV .... 16.13 s 5 .... 10.18 s 5(1)(b) .... 10.18 s 11A .... 7.35 s 17 .... 16.2 s 21 .... 16.39 s 21(1)(c) .... 16.48 s 23(2) .... 16.45 s 27(2) .... 16.48 lxxxix



Australian Property Law

Conveyancing and Law of Property Act 1884 – cont’d s 35(1) .... 10.7, 11.1 s 35A .... 10.18 s 36 .... 15.29 s 38 .... 10.20 s 60 .... 10.2 s 60(2) .... 9.9, 9.11 s 60(3) .... 10.2 s 60(4) .... 7.4 s 60(5)(d) .... 9.14 s 61(c) .... 15.4 s 62 .... 17.7 s 63(2) .... 10.5 s 63(5)(b) .... 10.3 s 71A .... 15.22 s 75 .... 5.12 s 84C .... 14.41, 15.46 s 84J .... 14.23 ss 102–104 .... 15.22 s 104 .... 15.46 Electronic Conveyancing (Adoption of National Law) Act 2013 .... 12.3, 12.29 Forestry Rights Registration Act 1990 s 5(3) .... 14.4 Land Titles Act 1980 .... 11.2 Pt VI, Div 5 .... 16.16 s 21 .... 11.1 s 25 .... 11.1 s 33(3) .... 11.2 s 40(3) .... 11.64 s 40(3)(b) .... 11.59 s 40(3)(c) .... 11.5 s 40(3)(d) .... 11.5, 11.70 s 40(3)(e) .... 11.5, 14.17 s 40(3)(f) .... 11.59 s 40(3)(h) .... 11.5, 11.63 s 41 .... 11.7, 11.18 s 42 .... 11.6 s 44 .... 17.18 s 46 .... 4.23 s 48B .... 11.4 s 48B(3) .... 12.15 s 49 .... 11.4 s 52 .... 13.5 s 60 .... 16.37 xc

s 67(b) .... 7.36 s 73 .... 16.15 s 77 .... 16.40 s 78 .... 16.39, 16.42 s 78(1) .... 16.41, 16.42 s 78(1)(b) .... 16.42 s 81 .... 16.42 s 81(2)(iii) .... 16.42 s 82 .... 16.36 s 103 .... 15.46 s 105(7) .... 14.35 s 108(1) .... 14.41 s 109 .... 14.48 s 126 .... 11.76 s 127 .... 11.71, 11.76 s 127(1) .... 11.76 s 128 .... 11.71 s 132 .... 11.4, 13.1 s 133 .... 13.6 s 138I(2) .... 14.35 s 138U .... 4.3 s 138V .... 11.63 s 138W(2) .... 4.3 s 138W(4) .... 4.3 s 138X .... 4.3 s 139(1) .... 11.78 s 152(1)(a) .... 11.73 s 152(1)(b) .... 11.72 s 152(1)(d) .... 11.76 s 152(2)(b) .... 11.77 Land Titles Amendment (Law Reform) Act 2001 .... 14.35 Landlord and Tenants Act 1935 s 26 .... 3.8 Limitation Act 1974 .... 4.14 s 2(2) .... 4.22 s 10(1) .... 4.7 s 10(2) .... 4.7 s 12(2) .... 4.8 s 26(1) .... 4.22 s 32 .... 4.22 Mineral Resources Development Act 1995 s 6 .... 3.26 Partition Act 1869 s 3 .... 17.72 s 4 .... 17.72



Statutes Perpetuities and Accumulations Act 1992 s 6 .... 6.17 s 6(1) .... 6.17 s 10 .... 6.15, 6.21 s 12 .... 6.17 s 15(1) .... 6.13 Presumption of Survivorship Act 1921 s 2 .... 17.7 Real Property Act 1862 .... 11.2, 11.23, 17.52 s 39 .... 17.52 s 42 .... 17.52 s 87 .... 17.52 s 138 .... 17.52 Real Property Act 1886 s 27E .... 15.46 Registration of Deeds Act 1935 .... 11.1 s 3 .... 11.1 Supreme Court Act 1986 s 49 .... 11.52 s 49(a) .... 11.52 Supreme Court Civil Procedure Act 1932 s 11(14) .... 7.37 s 11(14A) .... 7.37 Supreme Court Rules 2000 .... 2.23 VICTORIA Alpine Resorts Act 1983 s 28 .... 7.7 Chattels Securities Act 1987 s 6 .... 3.12 Charter of Human Rights and Responsibilities Act 2006 .... 8.20 s 19 .... 8.20 ss 30–36 .... 8.20 Climate Change Act 2017 s 4(2) .... 14.4 s 4(3) .... 14.4 Crimes Act 1958 .... 17.8 Discharged Servicemen’s Preference Act 1943 s 10 .... 11.56 Electronic Conveyancing (Adoption of National Law) Act 2013 .... 12.3 Fences Act 1984 s 7 .... 3.29 Human Tissue Act 1982 ss 38–39 .... 1.29

Instruments Act 1958 s 126 .... 9.9 s 126(1) .... 7.17 Land Act 1958 s 385 .... 3.20 Landlord and Tenant Act 1958 s 28 .... 3.8 Limitation of Actions Act 1958 .... 4.8, 4.14 s 3(2) .... 4.22 s 7 .... 4.7 s 7A .... 4.7 s 7AB .... 4.7 s 7B .... 4.7 s 8 .... 4.7, 4.16 s 9(1) .... 4.16 s 9(2) .... 4.8 s 10(2) .... 4.8 s 14(1) .... 4.10, 4.16 s 14(4) .... 4.10 s 18 .... 4.16 s 21 .... 4.8, 11.41 s 21(1) .... 11.41 s 21(2) .... 11.41 s 23(1) .... 4.22 s 27(1) .... 4.22 Mines Resources (Sustainable Development) Act 1990 s 9 .... 3.26 Penalty Interest Rates Act 1983 s 2 .... 13.27 Perpetuities and Accumulations Act 1968 s 5(1) .... 6.17 s 5(3) .... 6.17 s 6 .... 6.17 s 8 .... 6.15 s 9 .... 6.17, 6.21 s 11 .... 6.17 s 15(1) .... 6.13 Planning and Environment Act 1987 .... 15.47 s 60(2) .... 15.46 s 173 .... 15.8 s 182 .... 15.8 Property Law Act 1928 s 5 .... 17.62 s 52 .... 17.62 xci

 Property Law Act 1958 .... 14.36 Pt 1 .... 11.1 Pt 2, Div 5 .... 16.17 Pt IV .... 17.72 Div 3 .... 16.13 s 6 .... 11.1 s 10 .... 15.47 s 19A .... 5.20 s 28 .... 17.7 s 40 .... 11.4 s 42 .... 11.6, 11.61 s 42(2) .... 11.61 s 43 .... 11.7 s 44(1) .... 10.7, 11.1 s 44(6) .... 10.7 s 51 .... 10.2, 17.62 s 52 .... 10.2, 17.62 s 52(1) .... 5.21 s 53 .... 9.10, 15.29 s 53(1) .... 9.10, 9.11, 9.12 s 53(1)(a) .... 9.11, 9.12 s 53(1)(b) .... 9.11, 9.12 s 53(1)(c) .... 9.11, 9.12 s 53(2) .... 9.11 s 54 .... 7.4, 10.2 s 54(2) .... 5.21, 7.4 s 55(d) .... 9.14 s 56(1) .... 15.4 s 60 .... 5.12 s 62 .... 14.36 s 62(1) .... 14.36 s 73 .... 10.5 s 73A .... 10.3 s 78(1) .... 15.14 s 79 .... 15.22 s 79A .... 15.25 s 84 .... 15.46, 15.47 s 84(1) .... 15.46, 15.47, 15.48 s 84(1)(a) .... 15.48 s 84(1)(c) .... 15.47, 15.48 s 88(1) .... 15.46 s 91(2) .... 16.48 s 94 .... 10.20 s 95(1) .... 16.2 s 101(1)(c) .... 16.48 xcii

Australian Property Law s 104(2) .... 16.45 s 121 .... 14.15 s 134 .... 15.29 s 134(b) .... 16.37 s 141 .... 7.35, 16.17 s 146 .... 7.37 s 147 .... 7.37 s 154A .... 3.8 s 154A(2) .... 3.8 s 154A(2)(b) .... 3.8 s 184 .... 17.7 s 190 .... 14.5 s 191 .... 5.20 s 199 .... 10.18, 13.27 s 199(1)(b) .... 10.18 s 225 .... 17.72 s 228 .... 17.33, 17.72 s 249 .... 5.11 s 269 .... 3.26 s 271 .... 3.26 Residential Tenancies Act 1997 s 7 .... 7.28 s 31 .... 7.28 s 40 .... 7.28 s 45 .... 7.28 ss 62–63 .... 7.28 s 65 .... 7.28 s 72 .... 7.28 s 81 .... 7.9, 7.28 s 85 .... 7.28 Retail Tenancies Act 2003 s 1 .... 7.28 s 11 .... 7.28 s 17 .... 7.28 s 21 .... 7.28 s 33 .... 7.28 s 35 .... 7.28 s 61 .... 7.28 Sale of Land Act 1962 .... 13.24 ss 3–32 .... 3.27 s 32 .... 13.24 Sale of Land Act (Amendment) Act 1982 .... 13.24 Subdivision Act 1988 s 23 .... 15.46



Statutes Supreme Court Act 1986 .... 11.53 s 49 .... 11.52, 11.53 s 49(a) .... 11.56 ss 79–84 .... 2.23 Supreme Court (General Civil Procedure) Rules 2015 r 37.01 .... 1.29 Transfer of Land Act 1862 .... 11.2 Transfer of Land Act 1866 .... 16.4 Transfer of Land Act 1890 .... 15.42 s 47 .... 15.42 s 50 .... 15.42 s 72 .... 15.42 s 74 .... 15.42 s 140 .... 15.42 Transfer of Land Act 1915 s 72 .... 11.23 s 179 .... 11.13 Transfer of Land Act 1928 s 3 .... 17.62 s 146 .... 17.62 s 161 .... 16.4 s 162 .... 16.4 Transfer of Land Act 1954 .... 11.40, 11.42, 17.62 s 3(1) .... 11.40 Transfer of Land Act 1958 .... 11.2, 11.24, 11.52, 11.53, 12.4, 12.29, 13.3, 13.7, 13.24, 13.27, 14.45, 4.20, 15.43, 16.42, 17.25 Pt IIIA .... 12.4, 11.52, 12.29 Pt V Div 1B .... 13.5 s 3 .... 11.40, 12.4 s 27(2) .... 11.2 s 30 .... 17.18 s 30(2) .... 17.5, 17.18 s 31 .... 11.14 s 33(4) .... 17.25 s 37 .... 11.4, 13.1 s 40(2) .... 14.12 s 41 .... 11.40 s 42 .... 11.5, 11.6, 11.34, 11.37, 11.40, 11.41, 11.42, 11.52, 11.53, 11.70 s 42(1) .... 11.14, 11.34, 11.36 s 42(1)(a) .... 11.41, 11.42, 11.59 s 42(1)(b) .... 11.59

s 42(1)(d) .... 11.70 s 42(2) .... 11.42 s 42(2)(a)–(f) .... 11.5 s 42(2)(b) .... 11.5, 11.42, 11.62 s 42(2)(d) .... 11.5, 11.64, 11.70, 14.36 s 42(2)(e) .... 11.5, 11.69, 4.23 s 43 .... 11.18, 11.40, 11.41, 11.42, 11.47, 11.52 s 43(1) .... 11.7 s 43A .... 11.70 s 44 .... 11.41, 11.52 s 44(1) .... 11.14, 11.41 s 44(2) .... 11.2, 11.40, 11.41, 11.42 s 44A .... 12.4, 12.29 ss 44A–44N .... 11.2 s 44B(1) .... 11.2 s 44E .... 12.4, 12.29 s 44G .... 11.2 s 44H .... 11.78 s 44S .... 11.4 s 46 .... 16.37 s 50 .... 11.40 s 52 .... 11.40, 11.42 s 52(4) .... 11.41 s 60 .... 4.23 ss 60–62 .... 4.3, 11.62 s 67 .... 7.36 s 67(1) .... 7.36 s 67(1)(d) .... 7.36 s 68 .... 11.30 s 72 .... 14.45, 16.42 s 73 .... 14.41, 14.45 s 73(2) .... 14.41 s 74 .... 16.15 s 74(2) .... 16.17, 16.18, 17.62 s 75 .... 16.16 s 77 .... 16.17, 16.39, 16.41, 16.42 s 77(1) .... 16.40, 16.41 s 77(4) .... 16.17 s 78 .... 16.36, 16.42 s 78(1) .... 16.17, 16.42 s 78(1)(a) .... 16.17, 16.42 s 78(1)(b) .... 16.42 s 78(2) .... 16.42 s 79 .... 16.48 s 81 .... 16.16, 16.17, 16.18, 17.62 xciii



Australian Property Law

Transfer of Land Act 1958 – cont’d s 81(1) .... 16.17, 16.18, 17.62 s 81(3) .... 16.18 s 84 .... 16.17 s 86 .... 16.18 s 87A .... 11.14, 12.19, 16.18 s 87A(1) .... 11.14 s 87B .... 11.14, 12.19, 16.18 s 88 .... 15.22 s 88B .... 14.3, 14.4 s 89 .... 13.6, 13.7 s 91M .... 12.15 s 91M(1) .... 12.15 s 91M(2) .... 12.15 s 96 .... 11.42 s 96(2) .... 14.30 s 103(2)(a) .... 11.78 ss 108–11 .... 11.71 s 110 .... 11.40, 11.42, 11.75 s 110(1)(a) .... 11.72 s 110(1)(c) .... 11.76 s 110(3) .... 11.40, 11.41 s 110(3)(a) .... 11.77 s 135 .... 11.42 s 199 .... 11.30 Transfer of Land (Electronic Transactions) Act 2004 .... 11.2 Transfer of Land Statute 1866 s 93 .... 16.17 s 94 .... 16.17 Transfer of Land (Single Register) Act 1998 .... 11.1, 11.2 Trustee Act 1958 s 3(1) .... 11.41 Water Act 1989 s 7(1) .... 3.20 s 15 .... 3.21 s 64L .... 3.21 s 64M .... 3.21 Wills Act 1997 s 4 .... 5.13 WESTERN AUSTRALIA Carbon Rights Act 2003 s 6 .... 14.4 xciv

Chattels Securities Act 1987 s 6 .... 3.12 Dividing Fences Act 1961 s 7 .... 3.29 Electronic Conveyancing Act 2014 .... 12.3, 12.29 Human Reproductive Technology Act 1991 .... 2.5 s 18(1)(f) .... 2.5 s 25(a) .... 2.5 Human Tissue and Transplant Act 1982 s 22 .... 2.5 Land Act 1898 .... 8.26 Land Act 1933 .... 8.23 s 32 .... 8.26 s 33 .... 8.26 s 109 .... 8.26 s 116 .... 8.26 Law Reform (Statute of Frauds) Act 1962 s 2 .... 9.9 Limitation Act 1935 .... 4.14, 4.23, 14.35 s 3 .... 14.35 s 7 .... 4.8 s 16 .... 4.22 ss 35–37 .... 4.22 s 36 .... 4.7, 14.35 s 69 .... 4.8 s 77 .... 4.8 Limitation Act 2005 .... 4.7, 4.14 s 4 .... 4.7 s 76 .... 4.7 Mining Act 1978 s 9 .... 3.26 s 114 .... 3.8 Property Law Act 1969 .... 6.4, 6.13, 13.10, 15.26 Pt VI .... 16.13 Pt VII .... 13.10 Pt XIV .... 17.72 s 6 .... 13.10 s 7 .... 13.10 s 9(1) .... 10.5 s 9(4) .... 10.3 s 11 .... 15.4 s 11(1) .... 15.26 s 20 .... 15.29

Statutes s 23 .... 5.11 s 26 .... 5.20 s 29 .... 17.7 s 33 .... 10.2 s 34 .... 9.9, 15.29 s 34(1)(a) .... 9.11 s 34(1)(b) .... 9.11 s 34(2) .... 9.11 s 35 .... 10.2 s 35(2) .... 7.4 s 36(d) .... 9.14 s 42 .... 5.12 s 47 .... 15.14, 15.19, 15.20, 15.26, 15.27, 15.28 s 47(1) .... 15.26 s 48 .... 15.22, 15.26 s 48(1) .... 15.26 s 49 .... 15.25 s 55(1) .... 16.2 s 55(2) .... 16.48 s 57(1)(a) .... 16.39 s 57(1)(c) .... 16.48 s 60(2) .... 16.45 s 68 .... 13.10 s 69 .... 13.10 s 71 .... 7.2 s 77 .... 7.35 s 78 .... 13.10, 15.26 s 101 .... 6.17 s 102 .... 6.15 s 103 .... 6.13 s 105(1) .... 6.21 s 109 .... 6.17 s 110 .... 6.13 s 110(1)(B) .... 6.13 s 110(2) .... 6.13 s 121 .... 14.15 s 122 .... 4.23 s 122(2) .... 4.23 s 123 .... 4.23 s 123(1) .... 3.30 s 126(1) .... 6.4 s 129A .... 15.22 s 137 .... 13.10 Registration of Deeds Act 1856 .... 11.1 s 3 .... 11.1



Rights in Water and Irrigation Act 1914 s 15(1) .... 3.20 Rules of the Supreme Court 1971 O 52 r 3(1) .... 2.5 Sale of Land Act 1970 s 22 .... 10.7, 11.1 Supreme Court Rules Amendment (No 8 of 1997) rr 12–15 .... 2.23 Titles (Validation) and Native Title (Effect of Past Acts) Act 1995 .... 8.16 Transfer of Land Act 1874 .... 11.2 Transfer of Land Act 1893 .... 4.23, 11.2, 13.3, 13.10, 13.11 s 4 .... 13.10 s 14 .... 11.4 s 27 .... 11.1 s 48 .... 11.2 s 48(1) .... 11.2 s 55 .... 11.4, 13.1 s 58 .... 11.4 s 60 .... 17.18 s 63 .... 11.70 s 68 .... 4.23, 11.5, 11.41, 11.64, 11.66, 13.10, 14.26 s 68(1) .... 11.34, 11.59, 11.62 s 77(4) .... 16.17 s 81 .... 16.17 s 81(1) .... 16.17 s 85 .... 10.3, 16.11 s 93(ii) .... 7.36 s 104 .... 11.66, 14.26 s 105(3)–(5) .... 16.18 s 106 .... 16.15 ss 106–108 .... 16.39 s 108 .... 16.40 s 111 .... 16.18 s 116 .... 16.17, 17.62 s 116(1) .... 16.16 s 117 .... 16.17 s 121 .... 16.48 s 122(4)(b) .... 11.59 s 129(1)(c) .... 14.47 s 129(1)(c)(b) .... 14.41 s 129(2)(e) .... 11.59 s 129A .... 15.19 xcv



Australian Property Law

Transfer of Land Act 1893 – cont’d s 129B .... 15.19 s 129B(1) .... 15.19 s 129B(2) .... 15.46 s 129C .... 14.41, 15.26, 15.46 s 188(1)(3) .... 11.78 s 134 .... 11.7, 11.18, 11.34, 11.41 s 137 .... 13.6 s 201 .... 11.71, 11.72, 11.73, 11.76, 11.77 s 202 .... 11.6 s 205–11 .... 11.71 s 222(1) .... 4.23 ss 222–223A .... 4.3, 11.62 s 238B .... 12.15 INTERNATIONAL European Convention on Human Rights and Fundamental Freedoms Protocol No 1 Art 1 .... 4.4, 4.6, 4.15 United Nations Law of the Sea Convention 1983 Pt XI .... 1.30 Pt XI s 4 .... 1.30 Annex IV .... 1.30 NEW ZEALAND Grantees of Reversions Act 1540 .... 7.34 Land Transfer Act 1952 s 62 .... 11.30, 11.67, 14.26 s 63 .... 11.30, 11.67, 14.26 s 85 .... 11.13 s 100 .... 17.62 Partition Act 1539 .... 6.4, 17.72 Public Works Act 1908 s 15 .... 11.56 SCOTLAND Abolition of Feudal Tenure Act 2000 .... 5.6 SINGAPORE Acquisition of Land (Assessment of Compensation) Act 1919 .... 15.47 UNITED KINGDOM Acquisition of Land (Assessment of Compensation) Act 1919 .... 15.47 xcvi

Agricultural Holdings Act 1948 .... 4.14 Australian Courts Act 1828, 9 Geo IV c 83 .... 5.6, 14.35 s 24 .... 17.43 Colonial Laws Validity Act 1865, 28 & 29 Vict c 63 .... 8.28 Common Law Procedure Act 1852 .... 2.14, 2.23 Contracts (Rights of Third Parties) Act 1999 s 1 .... 15.3 Conveyancing and Law of Property Act 1881 s 6 .... 14.11 s 21(2) .... 16.46 s 58 .... 15.26 s 58(1) .... 15.26 Copyright Act 1911 s 5(2) .... 1.27 s 35(1) .... 1.27 Crown Proceedings Act 1947 .... 4.7 Crown Suits Act 1769 (Imp) .... 4.7 Domestic Violence and Matrimonial Proceedings Act 1976 s 1(1) .... 17.36 Family Law Act 1996 Pt IV .... 17.30 Forfeiture Act 1982 .... 17.8 Imperial Land Act 1831 .... 5.6 Infants Relief Act 1874 s 1 .... 11.52 Infants Relief Act 1909 .... 11.52 s 3 .... 11.52 Inheritance (Provision for Family and Dependants) Act 1975 .... 17.30 Land Registration Act 1925 .... 4.15, 10.18, 11.2 Land Registration Act 2002 s 96 .... 4.4 Sch 6 .... 4.4 Land Transfer Act 1952 .... 11.11 s 62 .... 11.11, 11.67 s 63 .... 11.11, 11.67 s 80 .... 11.11 s 81 .... 11.11 s 183 .... 11.11 Law of Property Act 1922 .... 5.3



Statutes Law of Property Act 1925 .... 5.3, 15.26, 17.15 s 2(1) .... 9.15 s 11 .... 15.29 s 15 .... 15.29 s 36(2) .... 17.56 s 40 .... 9.15, 16.28 s 47…. 15.26 s 48 .... 15.26 s 53(1)(b) .... 17.30 s 53(2) .... 17.30 s 56 .... 15.3 s 62 .... 14.13 s 62(1) .... 3.2 s 78 .... 15.25, 15.26, 15.27, 15.28 s 78(1) .... 15.25, 15.26 s 79 .... 15.26 s 141 .... 7.34 Law of Property (Miscellaneous Provisions) Act 1989 .... 9.15, 16.26 s 2 .... 16.28, 16.29, 17.57 Limitation Act 1980 .... 4.7, 4.14, 4.15, 4.22 s 32(1) .... 4.22 s 32(1)(b) .... 4.22 s 32(2) .... 4.22 Sch 1 .... 4.14 Sch 1 para 8(4) .... 4.15 Limitations Act 1623 .... 4.4, 4.14 Married Women’s Property Act 1882 s 17 .... 17.30 Matrimonial Causes Act 1973 .... 17.30 Metropolitan Police Act 1839, 2&3 Vict c 71 .... 2.17 s 29 .... 2.17 New South Wales Act 1823, 4 Geo IV c 96 .... 5.6 Nullum Tempus Act, 9 Geo III c 16 .... 14.35 Open Spaces Act 1906 .... 2.14 s 9(b) .... 2.14 s 10 .... 2.14 s 15 .... 2.14 Partition Act 1868 .... 6.4, 17.42 s 4 .... 17.42 s 5 .... 17.42 Perpetuities and Accumulations Act 2009 s 9 .... 6.13

Police (Property) Act 1897 .... 2.17 s 1 .... 2.17 Prescription Act 1832 .... 14.11, 14.36 s 2 .... 14.8, 14.11, 14.35 Public Health Act 1875, 38 & 39 Vict c 55 s 164 .... 2.14 Public Health Acts Amendment Act 1907 .... 2.14 s 76 .... 2.14 Rights of Way Act 1932 .... 14.35 Statute of Anne 1705 .... 17.43 s 27 .... 17.42 Statute of Frauds 1677 .... 5.21, 9.9, 9.10, 9.13, 9.14, 9.15, 16.26 s 4 .... 9.9, 9.14, 9.15, 16.26 s 26 .... 9.15 s 26(2) .... 9.15 Statute of Gloucester 1278 .... 5.13 Statute of Limitations of 1623 .... 14.22, 14.35 Statute of Merton 1235 .... 14.35 Statute of Quia Emptores 1290 .... 2.22, 5.2, 5.3, 6.1, 6.3 Statute of Uses 1535 .... 2.22, 5.20, 6.22, 9.2, 9.6 Statute of Westminster 1275 .... 14.35 Statute of Wills 1540 .... 5.2 Tenures Abolition Act 1660 .... 5.3 Trusts of Land and Appointment of Trustees Act 1996 .... 17.30 s 12(1) .... 17.30 s 13(1) .... 17.30 s 13(2) .... 17.30 s 13(3) .... 17.30 s 13(5) .... 17.30 s 13(6) .... 17.30 s 14(2)(a) .... 17.30 s 15(1) .... 17.30 s 15(2) .... 17.30 Wildlife Act 1976 s 33D(2) .... 2.15 UNITED STATES OF AMERICA Constitution s 11 .... 5.6 Uniform Commercial Code Art 9 .... 2.20 xcvii



Chapter 1

Concepts of Property Characteristics of Western Property Interests 1.1 Private property 1.1 Associated property rights 1.2 Case: Property as the Law of Things 1.3 Commentary 1.4 Property is a relationship 1.5 Case: Yanner v Eaton 1.6 Commentary 1.7 Property is a legal construct 1.8 Fragmentation of property 1.9 Distinction Between Proprietary and Contractual Rights 1.10 Nature of the distinction 1.10 Lease or licence? 1.11 Case: Cowell v Rosehill Racecourse Co Ltd 1.12 Commentary 1.13 Overview of the distinction between property and contract 1.14 Rationales for ‘private’ property 1.15 Classical liberalism: natural rights and the social contract 1.16 Utilitarianism 1.17 Socialism perspectives 1.18 Modernist: legal positivism 1.19 Contemporary perspectives 1.20 Revision Questions 1.21 Property and the environment 1.22 Case: Property Rights and the Environment 1.23 Case: Climate Change and the Evolution of Property Rights 1.23 Commentary 1.24 Non-Private Resources 1.25 Resources outside of ownership: res communes 1.25 Boundaries of Ownership: Resources Incapable of Ownership 1.26 Rights to a spectacle 1.26 1

1.1

Australian Property Law Case: Victoria Park Racing and Recreation Grounds Company Ltd v Taylor 1.27 Commentary 1.28 Resources incapable of ownership: moral boundaries 1.29 Resources incapable of ownership: common heritage of humanity 1.30 Revision Questions 1.31 Overview — Categorisation of Property Objects 1.32

Characteristics of Western Property Interests Private property 1.1  Outside the legal world, a reference to ‘property’ is generally understood to be a reference to specific tangible objects such as land or goods. From a legal perspective, however, property refers to a specific form of legal relationship that an individual has with an object or a resource, whether that object or resource be tangible or intangible in nature. In this regard, the legal definition of property has a relational rather than an object focus. There are many different types of objects and resources that may be amenable to a ‘property relationship’ and these include: • land; • goods; • shares; • the benefit of a contract; • the lyrics to a song; • computer software; • ideas; • airspace; • encumbrances; • rights attached to land; and • Indigenous cultural relationships over land. The property relationship is, however, a fundamentally different relationship to other legal relationships and must therefore be treated as functionally exceptional to contract and tort. As outlined by J B Baron, ‘The Contested Commitments of Property’ (2010) 61 Hastings Law Journal 917 at 938: First, property is a system; like any system, property is governed by a ‘design principle, albeit an “unstated” one.’ It works in rem, and to do its work, it needs, inter alia, things. Moreover — and this is a second commitment — property is exceptional. It is different from contract or tort.

The primary definitive feature of most property relationships in Western society is the existence of a right to exclude. In Western society, the property relationship confers rights of autonomy and control. The definitive feature of the property relationship is therefore the existence of a right to exclude and property is often referred to as ‘private property’. The existence of a right to exclude elevates the property relationship into a relationship that is enforceable in rem; that is, enforceable against the rest of the world. The concept of native title is examined further in Chapter 8. An in rem relationship is distinguishable 2

Concepts of Property

1.1

from an in personam relationship because the rights conferred are enforceable against the rest of the world and not just enforceable between the parties who are privy to the relationship. The holder of a property relationship may exclude other persons from using or enjoying the object and this right of exclusion is enforceable against the rest of the world. Many authors have highlighted the importance of the right to exclude as a definitive feature of the property relationship. William Blackstone in Volume 2, Chapter 1, of his Commentaries on the Laws of England, 1765–1769, p 1, stated the following: There is nothing which so generally strikes the imagination, and engages the affections of mankind, as the right of property; or that sole and despotic dominion which one man claims and exercises over the external things of the world, in total exclusion of the right of any other individual in the universe.

See also the comments by T W Merrill, ‘Property and the Right to Exclude’ (1998) 77 Nebraska Law Review 730 at 731, where the author describes the right to exclude as the sine qua non of the property relationship: My claim is simply that in demarcating the line between ‘property’ and ‘non-property’ — or ‘un-owned things’ (like the air in the upper atmosphere or the resources of the ocean beyond a certain distance from shore) — the right to exclude others is a necessary and sufficient condition of identifying the existence of property. Whatever other sticks may exist in a property owner’s bundle of rights in any given context, these other rights are purely contingent in terms of whether we speak of the bundle as property. The right to exclude is in this sense fundamental to the concept of property … The right to exclude is more than just one of the most essential constituents of property … [it] is the sine qua non.

The right to exclude and the principle of inviolability is one of the most basic elements of social existence and when applied to ‘things’ is inward looking in that it functions as a behavioural guide to individuals whereby they regulate their conduct to accommodate it. Hence, ‘propertising’ a resource and ‘vesting someone with ownership of it conveys to the world a message of resource inviolability’ (S Balganesh, ‘Demystifying the Right to Exclude: Of Property, Inviolability and Automatic Injunctions’ (2008) 31 Harvard Journal of Law and Public Policy 593 at 623). See also L Katz, ‘Exclusion and Exclusivity in Property Law’ (2008) 58 University of Toronto Law Journal 275; K M Wyman, ‘Problematic Private Property: The  Case of New York Taxi-Cabs’ (2013) 30 Yale Journal on Regulation 125. In  this sense, the right to exclude is a foundational attribute of property that creates a triadic relationship between the owner, the thing and the right of the owner to exclude others from the thing (T W Merrill, Property and the Right to Exclude II (2014) 3 BrighamCanner Property Rights Conference Journal 1). It is, however, arguable that the right to exclude does not, in itself, properly identify the complex ‘moral core’ of the property relationship. The right to exclude may promote individual liberty and freedom with respect to the use of an object; however, it has been suggested that a more sophisticated ‘moral’ theory would ‘yield a more complex conception of the core of ownership’: G S Alexander, ‘The Complex Core of Property’ (2009) 94 Cornell Law Review 1063. Alexander argues that an evolved ‘moral theory’ of property ‘would understand in pluralistic terms the values that private ownership serves, including but not limited to individual liberty. Some other values that ownership serves include human dignity, just social relations, and self-development. All of these values, along with others, constitute the moral foundation of the complex core of ownership.’ Rights of exclusion and control are not necessarily characteristics of property as it is culturally acknowledged within all social frameworks. For example, Indigenous communities in Australia do not recognise private relationships as property because their relationship with the land is far 3

1.1

Australian Property Law

more communal in orientation. This is discussed further in Chapter 8, which examines the nature and scope of native title interests.

Associated property rights 1.2  While the right to exclude defines property relationships, it is not the only property right and there are other associated rights. The bundle of rights that make up property will generally also include: the right to use and enjoy the property; the right to possess (although the absence of possession does not deny the right its proprietary status); and the right to alienate (meaning the right to alter ownership rights by selling, giving, mortgaging, leasing etc property to another). The law has long used the ‘bundle of sticks’ metaphor as a way to describe and think about the nature of rights associated with the property relationship and this is particularly true where the property relationship applies to land. As signified by the bundle, ownership of land does not indicate title to a physical portion of the earth so much as a power to enforce certain rights over the land. Collectively, these enforcement rights make up the bundle that itself constitutes the sum total of property rights one can have over a parcel of land. This metaphor is a symbol of the complex, multidimensional character of property rights, and stems from two prominent property philosophers, W Hohfeld and A M Honore, who highlighted the social and legal dimensions of property relationships. The bundle metaphor is not, however, a completely accurate depiction; it is analytical and descriptive rather than normative. One of the most significant difficulties with the bundle of rights metaphor lies in the fact that it treats ownership, particularly land ownership, in an abstract way, not taking into account any of the social and ecological communities to which that land or resource may be attached. It defines land according to its constituent parts, treating each parcel of land as conceptually similar and therefore quintessentially fungible in nature. Consequently, the ownership of land, for example, is removed from the reality of its context. This assumption ignores the social, environmental, and cultural context of land ownership. As stated by Penner, ‘The “Bundle of Rights” Picture of Property’ (1996) 43 UCLA Law Review 711 at 712: … the slogan, ‘property is a bundle of rights’ is a verbal representation of a picture in which property is a complex aggregate of jural relations. But this picture is founded on the mistaken impression that the elaboration of how property protects the use of things, and its interrelation with other rights, shows that property is a natural composite which can be carved ‘at the joints’ into free-standing parts … This picture is out of focus. Property is indeed complicated, but it is complicated because of the natural ability of people to use different kinds of things in different ways, and because of its situation in a normative system wherein different rights and duties and powers interrelate and inform each other.

This is a strong concern because land is not just an abstract component of a property relationship, it is also our habitat and therefore fundamental to human flourishing. In the words of Joseph Sax, ‘habitat inheres in land’, which means that the social relevance of land is intricately connected to its role within the natural economy: Joseph L Sax, ‘Ownership, Property and Sustainability’ (2011) 31 Utah Environmental Law Review 1, 10. See also M A Heller, ‘Critical Approaches to Property Institutions’ (2000) 79 Oregon Law Review 41 at 430, where the author notes that as the bundle of rights theory waxes in judicial decision making, it wanes in property theory. The author suggests that ‘new definitions of private property, in constructive, integrative, and definitional variants, can update the ‘hoary metaphors of property law while carrying a powerful normative punch’. The bundle of rights metaphor is also problematic for the propertisation of natural resources. In his article ‘The Reconstitution of Property: Property as a Web of Interests’ 4

Concepts of Property

1.3

(2002) 26 Harvard Environmental Law Review 281, C A Arnold notes that focus upon an abstract bundle of associated rights can often result in a lack of attention being given to the natural resource interest that is the subject of the property relationship. He states at p 283: … abstraction of property as a bundle of various rights, such as use, alienation, exclusion, and possession, is inconsistent with the fundamental tenets of an environmental ethic, which emphasise both context-specific interconnectedness and the value of the object itself. Contrary to the bundle of rights concept, the ‘thing’ itself matters, both as an empirical and theoretical matter.

The bundle of rights metaphor has, however, been a useful analytical tool in other ways because it focuses upon the conceptual foundations of the property relationship, treating this relationship as a collection of interrelated rights rather than a single, definitive notion. 1.3  The utility of the bundle of rights metaphor and the architecture of exclusion and delineation strategies within the private property system is explored by Smith in the following extract:

  Property as the Law of Things  Henry E Smith (2012) 125 Harvard Law Review 16911 Introduction Private law deals with the interactions of persons in society. If we think about all the effects produced by the relation between each pair of persons and then unlimited chains of such interactions — A sells Blackacre to B, who sells to C, who mortgages to D and rents to E, and so on — then prescribing results for such interactions is a potentially intractable problem. Private law would be an impossible enterprise. This is where property comes in. Property is a platform for the rest of private law. The New Private Law takes seriously the need for baselines in general and the traditional ones furnished by the law in particular. And nowhere is this issue of baselines more salient than in property. I argue that the baselines that property furnishes, as well as their refinements and equitable safety valves, are shaped by information costs. For information-cost reasons, property is, after all, a law of things. Property as a law of things, however, suffers from a serious image problem in American legal theory. In stark contrast, other legal systems treat property as a right to a thing and property law as the ‘law of things.’ An ‘in rem’ right originally meant a right ‘in a thing,’ and I argue that it is the mediation of a thing that helps give property its in rem character — availing against persons generally. But if legal realism and its progeny insisted on anything, it was that property is not about things. According to this conventional wisdom, property is a bundle of rights and other legal relations availing between persons. Things form the mere backdrop to these social relations, and a largely dispensable one at that. Particularly with the rise of intangible property, so  this story goes, the notions of ownership and property have become so fragmented and untethered to things that property is merely a conclusion, a label we affix to the cluster of entitlements that result from intelligent policymaking. By contrast, according to the realist and postrealist conventional wisdom, the traditional baselines provided by property law not only were undertheorized and underjustified, but also represented a pernicious superstition and

1. Footnotes in this article have not been reproduced — for references, see (2012) 125 Harvard Law Review 1691. 5

1.3

Australian Property Law

an obstacle to clear thinking and progressive remaking of the social order. An inclination to take traditional property baselines seriously can then be dismissed as a failure to get with the program and a reflection of lack of sophistication or a partiality for entrenched interests. I want to suggest that this familiar picture has things exactly backward. It is the extreme realist picture that is myopic, inflexible, and ultimately unworkable and the traditional baselines that, while in need of constant improvement, are very worthy of explanation and a good deal of respect. The point is not to restore prerealist formalism but to ask why property sometimes is formal and sometimes is not. The first step toward understanding private law is to try not to take things for granted and to be as attentive to how things are not as to how things are. As we will see, this type of detachment makes some room for formalism, which is somewhat ironic because commentators since the legal realist era have generally criticized prerealist ‘formalism’ for being complacent and taking traditional baselines and doctrine as given. Whether that was ever so, it is first of all important to distinguish between, on the one hand, making open-ended inquiries about property law and, on the other, building open-ended inquiry into the decision-making processes of judges and others operating the system of property law. There is nothing inconsistent about a highly contextual explanation of a system that itself eschews context — is ‘formalist’ — in important respects. … We must avoid confusing the ordinary level of analysis within a system with the metalevel of propositions about that system … at a metalevel, the bundle of rights is hardly a theory of property at all and that an architectural approach to property can do much better. To get anywhere, we have to be clear about the difference between means and ends in property. Property has purposes and employs various means to serve them. The purposes of property relate to our interest in using things. Desirable features of a system of property — stability, promotion of investment, autonomy, efficiency, fairness — relate to the interest in use. There is no interest in exclusion per se. Instead, exclusion strategies, including the right to exclude, serve the interest in use; by enjoying the right to exclude through torts like trespass, an owner can pursue her interest in a wide range of uses that usually need not be legally specified. For certain important potential use conflicts, the law specifies uses more directly, either through private law (property governance regimes, torts, contracts), public regulation, or custom. What realism and the bundle of rights typically fail to do is to distinguish between the purposes of property and the various means — trespass, nuisance, servitudes, zoning, and custom — to achieve them. Realism tends to assume a one-to-one and relatively direct relationship between the features of property and the purposes they serve, and not surprisingly, realists also regard property as plastic and responsive to policy-oriented refashioning. Once we recognize the distinction between our interest in using things and the institutions that property law sets up to serve those interests, the role of property baselines as a means for achieving property’s ends becomes clearer. This article argues that an information-cost account of the means property uses to serve its ends helps explain many features of property — and how they work together to achieve property’s purposes. Property is a shortcut over the ‘complete’ property system that would, in limitlessly tailored fashion, specify all the rights, duties, privileges, and so forth, holding between persons with respect to the most fine-grained uses of the most articulated attributes of resources. Property starts by taking advantage of the fact that some connections among people, uses, and attributes of things are more important than others. Property organizes this world into lumpy packages of legal relations — legal things — by setting boundaries around useful attributes that tend to be strong complements. The law of property in effect encapsulates these lumpy packages, or modules, semi-transparently from other modules and the outside world generally. Thus, property defines things using an exclusion strategy of ‘keep off’ or ‘don’t touch’ and then enriches the system of domains of owner control with interfaces using governance strategies. These strategies zoom in on relations between neighbors in the case of land, and between owners (and their things) and other parties in the case of both land and personal property. 6

Concepts of Property

1.3

Importantly, taking the architectural view raises the overlooked question of why things could not be otherwise. Why not use governance rules all the time? Why does property seem to be related to the notion of a thing and to residual claims? Why is the right to exclude important but also easy to overstate as the be-all and end-all of property? I will show that an architectural theory of property based on information costs and the advantages of using modularity to manage complexity can help answer those questions in a unified fashion. At the same time, such a theory shows how property fits, with its thing-based baselines, into the larger picture of private law. …

I. What is a theory of property? What makes for a good theory of property is not different from what makes for a good theory of anything else. But the advent of the New Private Law is a good occasion for taking stock of how current property theories stack up as theories. I argue that the bundle of rights by itself is more of a description than a theory and that the more extreme versions of the bundle of rights fail to be a theory at all — in contrast to a modular theory of property, and to property as a thing in particular. The bundle-of-rights picture of property draws on social science and accordingly aspires to be a scientific theory of property. To be sure, other types of theorizing, based on a more interpretative methodology and seeking coherence as a main goal, are also compatible with the New Private Law. But in this Article I accept the social-scientific theoretical style of the bundle in order to show that an information-cost theory succeeds better on those terms. … Does the bundle meet these criteria for good theorizing? The bundle has at its core a basic ambiguity: it is both an analytical device and a family of theories of property that elevate that analytic device to a central place. As an analytical device, the bundle of rights theory harks back to Wesley Newcomb Hohfeld and before, in attempts to analyze legal relations into their smallest atoms. Hohfeld disliked ambiguity in terms like ‘right’ and thought that concepts like property were collections of more fundamental legal relations that were related to each other as correlates and opposites. Thus rights, privileges, powers, and immunities in one party corresponded to duties, no-rights, liabilities, and disabilities in the party at the other end of the relation. And the scheme was quite elegant in that rights were the opposite of no-rights, and privileges the opposite of duties; similarly the pairs power-disability and immunity-liability were also opposites. In an attempt to capture the in rem aspect of some relations — that a right, for example, could avail against others generally — Hohfeld treated those relations as collections of in personam relations: a ‘multital’ relation was a collection of many similar ‘unital’ relations, and a ‘paucital’ relation was the collection of few similar unital relations. As an analytical device, the bundle picture can be very useful. It provides a highly accurate description of who can do what to whom in a legal (and perhaps nonlegal) sense. It provides an interesting theoretical baseline: how would one describe the relation of a property owner to various others if one were writing on a blank slate and doing the description in a fully bottomup manner, relation by relation, party by party? In this, the Hohfeldian world is a little like the Coasean world of zero transaction costs — a useful theoretical construct. … The problem with the bundle of rights is that it is treated as a theory of how our world works rather than as an analytical device or as a theoretical baseline. In the realist era, the benefits of tinkering with property were expressed in bundle terms without a corresponding theory of the costs of that tinkering. Indeed, in the most tendentious versions of the picture, the traditional baselines of the law were mocked, and the idea was to dethrone them in order to remove them as barriers to enlightened social engineering. In this version of the bundle picture, Hohfeldian sticks and potentially others are posited to describe the relations holding between persons; the fact that the relations hold with respect to a thing is relatively unimportant or, in some versions, of no importance. ‘Property’ is simply a conclusory label we might attach to the collection. In its classic formulation, the bundle picture puts no particular constraints on the contents of bundles: 7

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they are totally malleable and should respond to policy concerns in a fairly direct fashion. These policy-motivated adjustments usually involve adding or subtracting sticks and reallocating them among concerned parties or to society. This version of the bundle explains everything and so explains nothing. But the bundle is nothing if not protean. In recent times, various commentators have argued that property is not fully captured by the bundle picture. Going beyond the bundle usually involves emphasizing exclusion or some robust notion of the right to use. It can be motivated by analytical jurisprudence, natural rights, or information-cost economics. The bundle theory can incorporate some of these perspectives. Consider, for example, the recent resurgence of interest in the numerus clausus; this principle that property forms come in a finite and closed menu can be added onto the bundle theory as a ‘menu’ of collections of sticks. Bundle theorists can accommodate this development. But they are being reactive in this regard: it is hard to say that the bundle picture would have led anyone to view the numerus clausus as important in the common law. In this article, I present a theory that aims higher. At the most basic level, the extreme bundle picture takes too little account of the costs of delineating rights. The stick-by-stick, party-byparty ‘complete’ method of delineation is a nonstarter. Delineation involves defining the object of property, specifying the legal interests in it, and providing notice to the relevant parties, including duty bearers and enforcers. If so, then we need a theory of starting points and shortcuts over the hypothetical complete but infeasible system. As I also argue, once we do take the costs of delineation — information costs in particular — into account, then the baselines of traditional property, including property as a right to a thing, become easier to understand and to justify. Relatedly, if property is more than a collection of sticks, then a theory of property must address how the features of property relate to each other. Many aspects of property are only fully describable at the level of the property system as a whole, and some of property’s desirable (and undesirable) effects emerge holistically. The right to exclude, the residual claim, and so on are not detachable sticks serving detachable purposes. They are integral — but not absolute — aspects of property that follow from its architecture. That architecture responds in turn to the problem of managing the complexity of interactions between private parties with respect to a variety of attributes of resources in a world of positive delineation costs. … There is a basic architecture of property, and many features of property follow from it. They can be tweaked, but they are not as detachable as the bundle view would have it. Property is a holistic system made up of interactive components, not a system in which anything can in principle relate to anything else. Further, property law provides for actual bundles of rights (or legal relations) that exhibit features relating to their completeness not captured as the sum of their parts. No reasonable version of the bundle view, thankfully, fully exploits unconstrained interactivity, and that is the point: the bundle-of-sticks picture does not explain the organization and structure of property, but seems to take it for granted. Property as a bundle of sticks could be a partial outlook, but is not a theory.

II. Things as modules The alternative to the bundle should not be a return to prerealism or to pure doctrinalism. Unreflective conceptualism or formalism is a nonstarter and is not what the New Private Law is about. Here, I present an alternative to the bundle picture that I call an architectural or modular theory of property. This theory responds to information costs — it conceives of property as a law of modular ‘things.’ …

B. The Modular Things of Property The modular theory is more explanatory than the bundle picture. It helps explain the structures we do not find, shows how property can be used to maximize option value, and demonstrates why innovation in property takes the institutional paths it does. 8

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Because it makes sense in modern property systems to delegate to owners a choice from a range of uses and because protection allows for stability, appropriability, facilitation of planning and investment, liberty, and autonomy, we typically start with an exclusion strategy — and that goes not just for private property but for common and public property as well. ‘Use’ can include non-consumptive uses relating to conservation. The exclusion strategy defines a chunk of the world — a thing — under the owner’s control, and much of the information about the thing’s uses, their interactions, and the user is irrelevant to the outside world. Duty bearers know not to enter Blackacre without permission or not to take cars, without needing to know what the owner is using the thing for, who the owner is, who else might have rights and other interests, and so on. But dividing the world into chunks is not enough: spillovers and scale problems call for more specific rules to deal with problems like odors and lateral support, and to facilitate co-ordination (for example, covenants, common interest communities, and trusts). These governance strategies focus more closely on narrower classes of use and sometimes make more specific reference to their purposes, and so they are more contextual. The exclusion-governance architecture manages complexity in a way totally uncaptured by the bundle picture, and importantly, the former is modular while the latter is not. The exclusion strategy defines what a thing is to begin with. A fundamental question is how to classify ‘things,’ and, hence, which aspects of ‘things’ are the most basic units of property law. Many important features of property follow from the semitransparent boundaries between things. Boundaries carve up the world into semiautonomous components — modules — that permit private law to manage highly complex interactions among private parties. Property clusters complementary attributes — land’s soil nutrients, moisture, building support, or parts of everyday objects like chairs — into the parcels of real estate or tangible and intangible objects of personal property. It then employs information-hiding and limited interfaces to manage complexity. For example, if a car is not mine, I do not need to know who owns it, whether it is subject to a security interest or lease, and so forth, in order to know not to take or damage it. When A sells the car to B, many features of A and B are irrelevant to each other, and most are irrelevant to in rem duty holders, who only need know not to steal the car. Many details about A and B are irrelevant to their successors in interest. In the case of negotiable property (cash being the extreme example), most information about predecessors in interest is irrelevant to the current holder: one can gain good title to cash even from a thief. Because we want money to be easy to evaluate and to plug into transactions, it is the most modular property of all. … The architecture of property emerges from the process of solving the problem of how to serve use interests in a roughly cost-effective way. In modern societies, the solution usually involves first the application of a use-neutral exclusion strategy, and then refinement through contracts, regulations, common law doctrine, and norms. Exclusion is at the core of this architecture because it is a default, a convenient starting point. Exclusion is not the most important or ‘core’ value because it is not a value at all. Thinking that exclusion is a value usually reflects the confusion of means and ends in property law: exclusion is a rough first cut — and only that — at serving the purposes of property. It is true that exclusion piggybacks on the everyday morality of ‘thou shalt not steal,’ whereas governance reflects a more refined Golden-Rule, ‘do unto others’ type of morality in more personal contexts. It may be the case that our morality itself is shaped to a certain extent by the ease with which it can be communicated and enforced in more impersonal settings. I leave that question for another day. But the point here is that the exclusion-governance architecture is compatible with a wide range of purposes for property. Some societies will move from exclusion to governance — that is, some systems of laws and norms will focus more on individuated uses of resources — more readily than others, and will do so for different reasons than others. At the base of the architectural approach is a distinction that the bundle theory — along with other theories — tends to obscure: the distinction between the interests we have in using things and the devices the law uses to protect those interests. Property serves purposes related to use by employing a variety of delineation strategies. Because delineation costs are greater 9

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than zero, which strategy one uses and when one uses it will be dictated in part by the costs of delineation — not just by the benefits that correspond to the use-based purposes of property.

Commentary 1.4  Smith notes that according to conventional wisdom, property exists when we ascribe that label to the cluster of entitlements or the bundle of rights that arise from a particular relationship incorporating rights of exclusion. This approach has been criticised by realists and post-realists, and Smith suggests that its utility is unclear. The bundle of rights theory may be useful as a descriptive foundation but at the ‘metalevel’, Smith suggests it is less effective because it explains ‘everything and nothing’. Smith argues that a broader architectural approach to the descriptive foundation of property would be preferable to one that focuses upon exclusion and governance strategies. This framework would acknowledge the fact that property confers interests in use and that rights of exclusion serve these ‘use’ interests. See also the discussion by T W Merrill, ‘Property as Modularity’ (2012) 125 Harvard Law Review Forum 151; H E Smith, ‘Exclusion versus Governance: Two Strategies for Delineating Property Rights’ (2002) 31 Journal of Legal Studies S453. In ‘The Concept of Property: Relations Through Objects of Social Wealth’ (2003) 53 University of Toronto Law Journal 325, David Lametti considers the importance of the ‘objects’ that exist within the property relationship. He argues that property cannot be effectively understood without also understanding the objects of social wealth to which the property relationship applies and the moral implications of conferring a property relationship over these objects: In my view, we cannot avoid the idea that property is about the relationship between persons and resources, even with less traditional objects of social wealth. By concentrating on what is unique about the relations and on the role of objects of property, whether tangible or intangible, as filters for the relationship, we put the emphasis where it ought to be. From there we can go on to discuss implications. As a result, I would define private property as follows: ‘Private property is a social institution that comprises a variety of contextual relationships among individuals through objects of social wealth and is meant to serve a variety of individual and collective purposes. It is characterised by allocating to individuals a measure of control over the use and alienation of, some degree of exclusivity in the enjoyment of, and some measure of obligation to and responsibilities for scarce and separable objects of social wealth.’

When defining private property, Lametti argues that it is important to emphasise the significance of the object as an item of social wealth. This allows us to remember that while the private property relationship ranges in form and content, serving a range of individual and collective purposes, its primary responsibility is to confer exclusivity and responsibility for particular objects of social wealth. This raises a strong connection between property and democracy because many of the rights that are dealt with in the property relationship require attention to be given to the norms, values and ways of life that society embraces. (See J W Singer, ‘Property and Democracy’ (2014) 63 Duke Law Journal 1287. Hence, the morality that underpins a property system must be clear and accessible for all members of the community. See also A Dorfman, ‘The Normativity of the Private Property Form’ (2012) 75 Modern Law Review 981. Understanding the nature of the object is an important aspect of the property relationship. In The Idea of Property in Law (Oxford University Press, Oxford, 1997, p 13), 10

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J Penner concluded that to fully appreciate the nature of in rem rights we need to discard the ‘idea that a right in rem is a simple relation between one person and an indefinite set of others’ and refocus on the relationship with the object itself. In ‘The “Bundle of Rights” Picture of Property’ (1996) 43 UCLA Review 711 at 719–720, Penner noted that property rights are usage rights and that the right of exclusion arises from the conferral of these usage rights. He stated: The right to property is a right of exclusion which is granted by the interest we have in the use of things … our interest in the use of things is social. We have an interest in dealing with things largely so that, as social creatures, we can engage others in the way we want to make use of them … Second, our interest in things that justifies a right to property is an interest in using things as such … On this formulation use justifies the right, while exclusion frames the practical essence of the right.

See also H E Smith, ‘Property and Property Rules’ (2004) 79 New York University Law Review 1710, where the author argues at 1772 that the inclusion of the right to exclude within the bundle of usage rights conferred upon an owner is a ‘fast and frugal heuristic that allows boundedly rational beings to make surprisingly accurate decisions in a low cost way’.

Property is a relationship 1.5  Legally, property refers to the relationship that an individual has with an object rather than the object itself. The property relationship differs from other forms of relationship that may arise with respect to the object. This is because the property relationship confers upon the holder rights to use and enjoy the object. These rights are exclusive and enforceable against the rest of the world. This gives the holder a legally enforced concentration of power and control over the object. The relational foundation of property gives it the capacity to evolve in accordance with the changing nature of society, shifting social values and the ever-expanding category of objects and resources capable of being propertised. Determining whether the relationship between a person and an object constitutes a property relationship will depend upon the character of the rights conferred. The status of property as a ‘human relationship’ was outlined by F Cohen, ‘Dialogue on Private Property’ (1954–55) 9 Rutgers Law Review 357, who notes at 373 that ‘Private property is a relationship among human beings such that the so-called owner can exclude others from certain activities and permit others to engage in those activities and in either case secure the assistance of the law in carrying out his decision’. 1.6  The scope and status of the property relationship and the rights it confers was examined by the High Court in Yanner v Eaton (1999) 166 ALR 258 in the context of considering the nature and enforceability of native title interests. The decision is extracted below.

  Yanner v Eaton  (1999) 166 ALR 258 Facts: In 1994, the appellant, a member of the Gunnamulla clan of the Gangalidda tribe of Aboriginal Australians, used a traditional form of harpoon to catch two juvenile estuarine crocodiles in Queensland. The appellant was charged before a magistrate with the offence of taking and keeping fauna without a permit under the Fauna Conservation Act 1974 (Qld). The magistrate found that the appellant’s clan had a connection with the land from which the 11

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crocodiles were taken, which connection had existed ‘before the common law came into being in the colony of Queensland in 1823 and … thereafter continued’; that it was a traditional custom of the clan to hunt juvenile crocodiles for food; and that the evidence suggested that the taking of juvenile rather than adult crocodiles had ‘tribal totemic significance and [was based on] spiritual belief’. The magistrate found the appellant not guilty and dismissed the charge. On the informant’s application for an order to review the magistrate’s decision, a majority of the Court of Appeal set aside the magistrate’s order and remitted the matter to the magistrates court for the matter to proceed according to law. By special leave, the appellant appealed to the High Court. Gleeson CJ, Gaudron, Kirby and Hayne JJ: The appellant contended that the magistrate was right to dismiss the charge because in taking the crocodiles the appellant was exercising or enjoying his native title rights and interests; these rights and interests were preserved by the Native Title Act. It followed (so the argument went) that the Fauna Act, to the extent to which it prohibited or restricted the taking of crocodiles in the exercise of those rights and interests for the purpose of satisfying personal, domestic or non-commercial communal needs, was invalidated by s 109 of the Constitution. The respondent contended that any native title right or interest to hunt crocodiles in Queensland which the appellant may have enjoyed had been extinguished, prior to the commencement of the Native Title Act, by the enactment of s 7(1) of the Fauna Act which provided that: All fauna, save fauna taken or kept otherwise than in contravention of this Act during an open season with respect to that fauna, is the property of the Crown and under the control of the Fauna Authority. It followed, so the respondent submitted, that the Native Title Act provisions preserving native title rights and interests to hunt and fish had no relevant operation in this case, because the native title rights and interests upon which the appellant relied had been extinguished before the Native Title Act was enacted. Earlier forms of Queensland fauna legislation had provided expressly that those Acts (with some presently irrelevant exceptions) did not apply to ‘[a]ny aboriginal killing any native animal for his own food’. Unlike these earlier Acts, however, the Fauna Act did not deal expressly with Aboriginals taking native animals or birds for food. That being so, much of the argument in this court concerned what effect the Fauna Act’s vesting of ‘property’ in some fauna in the Crown had on the native title rights and interests asserted by the appellant.

The Fauna Act The meaning of s 7(1) can be identified only by construing it in the light of the whole Fauna Act. It is necessary, therefore, to refer to a number of other provisions, but before doing so it is as well to emphasise that s 7(1) did not make all fauna ‘the property of the Crown and under the control of the Fauna Authority’. What the subsection described as ‘fauna taken or kept otherwise than in contravention of this Act during an open season with respect to that fauna’ was excepted. The Fauna Authority was defined by s 5 as the minister for the time being administering the Fauna Act ‘and subject to the Minister’ the Director of National Parks and Wildlife appointed under the National Parks and Wildlife Act 1975 (Qld). ‘Fauna’ was defined by the Fauna Act (in effect) as any bird or mammal indigenous to Australia or declared by Order in Council to be fauna, and any animal or member of a species of animal declared by Order in Council to be fauna. ‘Fauna’ included the young, the egg, the carcass, skin or nest of the animal or member of species but did not include any processed products except those declared by Order in Council. ‘Bird’ and ‘mammal’ were defined respectively to mean a bird or mammal, ‘wild by nature whether native to a State or Territory of the Commonwealth, migratory or introduced, in captivity, bred in captivity or tamed’. Estuarine crocodiles were declared by Order in Council made on 29 August 1974 to be fauna for the purposes of the Act. 12

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The Fauna Act divided fauna into four classes: ‘permanently protected fauna’, ‘protected fauna’, ‘non-protected fauna’ and ‘prohibited fauna’. Fauna other than permanently protected fauna, non-protected fauna and prohibited fauna was defined as protected fauna for the purposes of the Act. Subject to declaration of an open season, protected fauna could lawfully be taken or kept only in certain limited circumstances: if it was orphaned, injured, sick or emaciated; or if it was causing or likely to cause damage or injury. In addition, a snake or estuarine crocodile might be killed if it had caused, was causing or was likely to cause injury to a person. Non-protected fauna might be taken at any time. An open season might be declared in respect of protected fauna and in that case permits could be issued permitting the taking of that fauna. Additionally, the Director of National Parks and Wildlife was empowered to issue permits to fauna dealers to buy, keep, sell or otherwise dispose of protected fauna during a close season. The terms of s 54(1)(a) prohibiting the taking or keeping of fauna without a licence are set out above. The apparent generality of that prohibition must be understood in the light of not only its reference to the holder of a licence, permit, certificate or other authority granted and issued under the Fauna Act, but also the further exemptions created by s 54(1)(b). That paragraph exempted (among other things) the keeping of protected fauna that was taken otherwise than in contravention of the Act during an open season and the taking of fauna at a time and place when and where it is non-protected fauna. The penalty for contravening s 54(1)(a) was a fine or imprisonment (or both) and the offender was liable ‘in any case to an additional penalty not exceeding twice the royalty on each fauna in respect of which the offence is committed’. The reference to royalty is significant. Section 67 of the Fauna Act provided: (1) Subject to subsection (4), royalty at the rates prescribed shall be payable to the Crown on prescribed fauna. (2) Notwithstanding this Act or any other Act or law, payment of royalty on fauna pursuant to this Act does not transfer property in that fauna from the Crown. (3) Rates of royalty may vary in respect of different species of fauna. (4) The regulations may exempt from the payment of royalty species of fauna specified therein in cases where that fauna is taken otherwise than in contravention of this Act. Fauna protection legislation in Queensland had contained generally similar royalty provisions for many years. They were introduced in 1924 to take the benefit of what was seen at the time to be a valuable and developing fur trade. The obligation to pay royalty under the Fauna Act was supported by several other provisions of that Act including s 69 which made it an offence to fail to pay royalty, s 70 which provided for recovery by summary proceeding under the Justices Act 1886 (Qld) or by action ‘as for a debt due to the Crown’, and s 71 which permitted a fauna officer to detain fauna in respect of which royalty payable was not paid. Section 71(2) provided that: Fauna so seized and detained shall, without further or other authority, be forfeited to Her Majesty, unless all royalty payable thereon is paid within one month of its seizure and detention. Similar provision was made by s 83 in respect of fauna, appliances or other things seized under the Act. Section 83(3) provided that: Notwithstanding this Act, the Minister may order that any fauna, appliance or other thing seized under this Act be forfeited to Her Majesty though proceedings have not been taken for, nor any person convicted of, an offence against this Act in respect thereof. No doubt ss 71(2) and 83(3) must be read in the light of s 84 which provided that: The provisions of this Act with respect to the seizure, detention or forfeiture of fauna shall not prejudice or affect in any way the rights of the Crown with respect to fauna that by virtue of section 7 is the property of the Crown, and those rights may be exercised at any time. 13

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What, then, is the meaning to be given to s 7(1) and its provision that some fauna is the property of the Crown and under the control of the Fauna Authority? Did it, as the respondent submitted, give rights to the Crown in respect of fauna that were inconsistent with the rights and interests upon which the appellant relied?

‘Property’ The word ‘property’ is often used to refer to something that belongs to another. But in the Fauna Act, as elsewhere in the law, ‘property’ does not refer to a thing; it is a description of a legal relationship with a thing. It refers to a degree of power that is recognised in law as power permissibly exercised over the thing. The concept of ‘property’ may be elusive. Usually it is treated as a ‘bundle of rights’. But even this may have its limits as an analytical tool or accurate description, and it may be, as Professor Gray has said, that ‘the ultimate fact about property is that it does not really exist: it is mere illusion’. Considering whether, or to what extent, there can be property in knowledge or information or property in human tissue may illustrate some of the difficulties in deciding what is meant by ‘property’ in a subject matter. So too, identifying the apparent circularity of reasoning from the availability of specific performance in protection of property rights in a chattel to the conclusion that the rights protected are proprietary may illustrate some of the limits to the use of ‘property’ as an analytical tool. No doubt the examples could be multiplied. Nevertheless, as Professor Gray also says, ‘An extensive frame of reference is created by the notion that “property” consists primarily in control over access. Much of our false thinking about property stems from the residual perception that “property” is itself a thing or resource rather than a legally endorsed concentration of power over things and resources.’ ‘Property’ is a term that can be, and is, applied to many different kinds of relationship with a subject matter. It is not ‘a monolithic notion of standard content and invariable intensity’. That is why, in the context of a testator’s will, ‘property’ has been said to be ‘the most comprehensive of all the terms which can be used, inasmuch as it is indicative and descriptive of every possible interest which the party can have’. Because ‘property’ is a comprehensive term it can be used to describe all or any of very many different kinds of relationship between a person and a subject matter. To say that person A has property in item B invites the question what is the interest that A has in B? The statement that A has property in B will usually provoke further questions of classification. Is the interest real or personal? Is the item tangible or intangible? Is the interest legal or equitable? For present purposes, however, the important question is what interest in fauna was vested in the Crown when the Fauna Act provided that some fauna was ‘the property of the Crown and under the control of the Fauna Authority’? The respondent’s submission (which the Commonwealth supported) was that s 7(1) of the Fauna Act gave full beneficial, or absolute, ownership of the fauna to the Crown. In part this submission was founded on the dictum noted earlier, that ‘property’ is ‘the most comprehensive of all the terms which can be used’. But the very fact that the word is so comprehensive presents the problem, not the answer to it. ‘Property’ comprehends a wide variety of different forms of interests; its use in the Act does not, without more, signify what form of interest is created. There are several reasons to conclude that the ‘property’ conferred on the Crown is not accurately described as ‘full beneficial, or absolute, ownership’. First, there is the difficulty in identifying what fauna is owned by the Crown. Is the Fauna Act to be read as purporting to deal with the ownership of all fauna that is located within the territorial boundaries of the State but only for so long as the fauna is within those boundaries, or does it deal with all fauna that has at any time been located within those boundaries? That is, does the Fauna Act purport to give the Crown ownership of migratory birds only as they pass through Queensland, or does it purport to give ownership to the Crown of every bird that has ever crossed the Queensland border?

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Secondly, assuming that the subject matter of the asserted ownership could be identified or some suitable criterion of identification could be determined, what exactly is meant by saying that the Crown has full beneficial, or absolute, ownership of a wild bird or animal? The respondent (and the Commonwealth) sought to equate the Crown’s property in fauna with an individual’s ownership of a domestic animal. That is, it was sought to attribute to the Crown what Pollock called ‘the entirety of the powers of use and disposal allowed by law’. At common law, wild animals were the subject of only the most limited property rights. At common law there could be no ‘absolute property’, but only ‘qualified property’ in fire, light, air, water and wild animals. An action for trespass or conversion would lie against a person taking wild animals that had been tamed, or a person taking young wild animals born on the land and not yet old enough to fly or run away, and a land owner had the exclusive right to hunt, take and kill wild animals on his own land. Otherwise no person had property in a wild animal. ‘Ownership’ connotes a legal right to have and to dispose of possession and enjoyment of the subject matter. But the subject matter dealt with by the Fauna Act is, with very limited exceptions, intended by that Act always to remain outside the possession of, and beyond disposition by, humans. As Holmes J said in Missouri v Holland: ‘Wild birds are not in the possession of anyone; and possession is the beginning of ownership.’ Thirdly, there are several aspects of the Fauna Act which tend to suggest that the property in fauna conferred on the Crown may not easily be equated with the property an individual may have in a domestic animal. The property rights of the Crown would come and go according to the operation of the exception contained in s 7(1) of fauna taken or kept ‘otherwise than in contravention of this Act during an open season with respect to that fauna’. As open seasons were declared and fauna taken, what otherwise was the property of the Crown, ceased to be. Next there are the references in ss 71(2) and 83(3) to forfeiture of fauna to the Crown. Even accepting that s 84 says that these sections shall not prejudice or affect the rights of the Crown conferred by s 7, why were ss 71(2) and 83(3) necessary if the Crown owned the fauna? Then there are the provisions of s 7(2) that ‘[l]iability at law shall not attach to the Crown by reason only of the vesting of fauna in the Crown pursuant to this section’. The Crown’s property is property with no responsibility. None of these aspects of the Fauna Act concludes the question what is meant by ‘property of the Crown’, but each tends to suggest that it is an unusual kind of property and is less than full beneficial, or absolute, ownership. Fourthly, it is necessary to consider why property in some fauna is vested in the Crown. Provisions vesting property in fauna in the Crown were introduced into Queensland legislation at the same time as provisions imposing a royalty on the skins of animals or birds taken or killed in Queensland. A ‘royalty’ is a fee exacted by someone having property in a resource from someone who exploits that resource. As was pointed out in Stanton v FCT: … the modern applications of the term [royalty] seem to fall under two heads, namely the payments which the grantees of monopolies such as patents and copyrights receive under licences and payments which the owner of the soil obtains in respect of the taking of some special thing forming part of it or attached to it which he suffers to be taken. That being so, the drafter of the early Queensland fauna legislation may well have seen it as desirable (if not positively essential) to provide for the vesting of some property in fauna in the Crown as a necessary step in creating a royalty system. Further, the statutory vesting of property in fauna in the Crown may also owe much to a perceived need to differentiate the levy imposed by the successive Queensland fauna statutes from an excise. For that reason it may well have been thought important to make the levy as similar as possible not only to traditional royalties recognised in Australia and imposed by a proprietor for taking minerals or timber from land, but also to some other rights (such as warren and piscary) which never made the journey from England to Australia. 15

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In light of all these considerations, the statutory vesting of ‘property’ in the Crown by the successive Queensland Fauna Acts can be seen to be nothing more than ‘a fiction expressive in legal shorthand of the importance to its people that a State have power to preserve and regulate the exploitation of an important resource’. So much was acknowledged in the second reading speech on the bill which first vested property in fauna in the Crown. The minister said: It [the fur industry] is an industry that really belongs to the people, and although the bill, among other things, makes it quite clear that the native animals of the State belong to the people of the State, I do not think there is any doubt in the minds of any one regarding that question already. The native animals belong to the people in just the same way as the timber and the minerals belong to the people, and they cannot be sold without permission. Roscoe Pound explained why wild animals and other things not the subject of private ownership are spoken of as being publicly owned. He said: We are also tending to limit the idea of discovery and occupation by making res nullius (eg, wild game) into res publicae and to justify a more stringent regulation of individual use of res communes (eg, of the use of running water for irrigation or for power) by declaring that they are the property of the state or are ‘owned by the state in trust for the people’. It should be said, however, that while in form our courts and legislatures seem thus to have reduced everything but the air and the high seas to ownership, in fact the so-called state ownership of res communes and res nullius is only a sort of guardianship for social purposes. It is imperium, not dominium. The state as a corporation does not own a river as it owns the furniture in the state house. It does not own wild game as it owns the cash in the vaults of the treasury. What is meant is that conservation of important social resources requires regulation of the use of res communes to eliminate friction and prevent waste, and requires limitation of the times when, places where, and persons by whom res nullius may be acquired in order to prevent their extermination. Our modern way of putting it is only an incident of the nineteenth-century dogma that everything must be owned. The ‘property’ which the Fauna Act and its predecessors vested in the Crown was therefore no more than the aggregate of the various rights of control by the Executive that the legislation created. So far as now relevant those were rights to limit what fauna might be taken and how it might be taken, rights to possession of fauna that had been reduced to possession, and rights to receive royalty in respect of fauna that was taken (all coupled with, or supported by, a prohibition against taking or keeping fauna except in accordance with the Act). Those rights are less than the rights of full beneficial, or absolute, ownership. Taken as a whole the effect of the Fauna Act was to establish a regime forbidding the taking or keeping of fauna except pursuant to licence granted by or under the Act. The respondent expressly disclaimed a contention that the enactment of legislation forbidding the taking or keeping of fauna except pursuant to licence would be sufficient to extinguish the rights and interests relied on by the appellant. This concession was rightly made and it follows, therefore, from what we have said about the meaning and effect of the Fauna Act (and, in particular, the vesting of property in some fauna in the Crown) that the Act did not extinguish those rights and interests. It is as well, however, to examine why the respondent’s concession was right. That examination must begin from a consideration of what is meant by native title rights and interests.

Native title rights and interests Section 223 of the Native Title Act provides (in part): (1) The expression ‘native title’ or ‘native title rights and interests’ means the communal, group or individual rights and interests of Aboriginal peoples or Torres Strait Islanders in relation to land or waters, where: 16

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(a) the rights and interests are possessed under the traditional laws acknowledged, and the traditional customs observed, by the Aboriginal peoples or Torres Strait Islanders; and (b) the Aboriginal peoples or Torres Strait Islanders, by those laws and customs, have a connection with the land or waters; and (c) the rights and interests are recognised by the common law of Australia. (2) Without limiting subsection (1) ‘rights and interests’ in that subsection includes hunting, gathering, or fishing, rights and interests. The hunting and fishing rights and interests upon which the appellant relied (and which the magistrate found to exist) were rights and interests ‘possessed under the traditional laws acknowledged, and the traditional customs observed’, by the clan and tribe of which the appellant was a member. The magistrate found that by those laws and customs, the appellant’s clan and tribe had a connection with the land and waters where the crocodiles were taken. At least until the passing of the Fauna Act those rights and interests were recognised by the common law of Australia. The respondent’s contention was that the Fauna Act ‘extinguished’ these rights and interests. This led to debate about what was referred to as the ‘partial extinguishment of native title’ and what was meant by that term. It is unnecessary, however, to examine that debate in this case. It is clear that native title in land is extinguished by a grant in fee simple of that land. As was said in the joint judgment in Fejo v Northern Territory ‘it is extinguished because the rights that are given by a grant in fee simple are rights that are inconsistent with the native title holders continuing to hold any of the rights or interests which together make up native title’. That is, native title is extinguished by the creation of rights that are inconsistent with the native title holders continuing to hold their rights and interests. The extinguishment of such rights must, by conventional theory, be clearly established. The critical contention of the respondent was that the Fauna Act created a legal regime that was inconsistent with native title holders in Queensland (and, in particular, the group of which the appellant is a member) continuing to hold one of the rights and interests (the right and interest in hunting and fishing) that made up the native title the magistrate found to exist. That inconsistency was said to lie in the creation of property rights in the Crown that were inconsistent with the continued existence of the native title rights and interests. It is unnecessary to decide whether the creation of property rights of the kind that the respondent contended had been created by the Fauna Act would be inconsistent with the continued existence of native title rights. It is sufficient to say that regulating the way in which rights and interests may be exercised is not inconsistent with their continued existence. Indeed, regulating the way in which a right may be exercised presupposes that the right exists. No doubt, of course, regulation may shade into prohibition and the line between the two may be difficult to discern. Similarly, it may not always be easy to say whether the creation of statutory rights or interests before the enactment of the Racial Discrimination Act 1975 (Cth) and the Native Title Act was consistent with the continued existence of native title rights and interests. (The Racial Discrimination Act and the Native Title Act will, of course, have to be considered where the question concerns the effect of steps taken after the enactment of those Acts.) But in deciding whether an alleged inconsistency is made out, it will usually be necessary to keep well in mind that native title rights and interests not only find their origin in Aboriginal law and custom, they reflect connection with the land. As Brennan J said in R v Toohey; Ex parte Meneling Station Pty Ltd, ‘Aboriginal ownership is primarily a spiritual affair rather than a bundle of rights’ but ‘[t]raditional Aboriginal land is not used or enjoyed only by those who have primary spiritual responsibility for it. Other Aboriginals or Aboriginal groups may have a spiritual responsibility for the same land or may be entitled to exercise some usufructuary right with respect to it’. 17

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Native title rights and interests must be understood as what has been called ‘a perception of socially constituted fact’ as well as ‘comprising various assortments of artificially defined jural right’. And an important aspect of the socially constituted fact of native title rights and interests that is recognised by the common law is the spiritual, cultural and social connection with the land. Regulating particular aspects of the usufructuary relationship with traditional land does not sever the connection of the Aboriginal peoples concerned with the land (whether or not prohibiting the exercise of that relationship altogether might, or might to some extent). That is, saying to a group of Aboriginal peoples, ‘You may not hunt or fish without a permit’, does not sever their connection with the land concerned and does not deny the continued exercise of the rights and interests that Aboriginal law and custom recognises them as possessing. Not only did the respondent not contend that such a law severed that connection, s 211 of the Native Title Act assumes that it does not. Section 211 provides that a law which ‘prohibits or restricts persons’ from hunting or fishing ‘other than in accordance with a licence, permit or other instrument granted or issued to them under the law’, does not prohibit or restrict the pursuit of that activity in certain circumstances where native title exists. By doing so, the section necessarily assumes that a conditional prohibition of the kind described does not affect the existence of the native title rights and interests in relation to which the activity is pursued. The Fauna Act did not extinguish the rights and interests upon which the appellant relied. Accordingly, by operation of s 211(2) of the Native Title Act and s 109 of the Constitution, the Fauna Act did not prohibit or restrict the appellant, as a native title holder, from hunting or fishing for the crocodiles he took for the purpose of satisfying personal, domestic or non-commercial communal needs. The magistrate was right to dismiss the information. For completeness it is as well to note two further matters. First, although the respondent did not rely on the earlier decision of this court in Walden v Hensler it must be recalled that the issues discussed in that case were radically different from those that arise in the present, not least because they arose before the passing of the Native Title Act. Secondly, a number of submissions were made in the course of argument that touched upon questions much broader than those that must be decided in this proceeding. It is neither necessary nor desirable to express any view about them when this case can be decided on the narrow question whether the Fauna Act should be given the construction for which the respondent and the Commonwealth contended. It should not be given that construction. The appeal should be allowed, the orders of the Court of Appeal of Queensland set aside and in lieu it should be ordered that the order nisi be discharged.

Commentary 1.7  The judgment of Gleeson CJ, Gaudron, Kirby and Hayne JJ in Yanner v Eaton highlights the relational character of property in the specific legislative context of the Fauna Conservation Act 1954 (Qld). Their Honours concluded that property, as it is referred to in the Act, is not a reference to the physical object but rather a reference to the degree of power that the property relationship confers. Hence, when the legislation conferred upon the Crown all of the property in the fauna, it did not intend to vest ownership of the fauna itself, but rather an aggregate of various rights of control, which included the right to establish a regulatory regime over the fauna but which did not include full beneficial or absolute ownership of the fauna. In reaching this conclusion, their Honours made reference to the conclusions of Professor Kevin Gray who stated that much of our ‘false thinking about property stems from the residual perception that “property” is itself a thing or resource rather than a legally endorsed concentration of power over things 18

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and resources …’. Professor Gray argued that the relational focus of property means that ultimately, references to property are illusory and that talk of property is ‘merely talk without substance’ because upon closer inspection, it is a concept that ‘vanishes into thin air’: Gray, ‘Property in Thin Air’ (1991) 50 Cambridge Law Journal 252 at 299. In Telstra Corporation Limited v The Commonwealth (2008) 234 CLR 10 at 44 the High Court observed that in many cases it may be helpful to speak of property as ‘a bundle of rights’ whereas at other times it may be more helpful to speak of property as ‘a legally endorsed concentration of power over things and resources’. The court concluded that ‘Seldom will it be useful to use the word “property” as referring only to the subject matter of that legally endorsed concentration of power’. See also White v DPP (2011) 243 CLR 478 at [10–11] and S Worthington, ‘The Disappearing Divide Between Property and Obligation: The Impact of Aligning Legal Analysis and Commercial Expectation’ (2007) 42 Texas International Law Journal 917 at  920, where the author notes that transferability and excludability define private property rights and therefore allow the holders of property rights to control allocation and access. These relationship aspects of private property are problematic when applied to fundamental natural resources because private control may result in a correlative diminution in public benefit. In Australia, where many natural resources, including water, minerals and hydro-carbons, are vested in the State, the private property relationship in land is qualified by state rights over interconnected natural resources. This qualification reflects the importance of protecting these public resources against private control allocation and access. As outlined by the Full Federal Court in Esposito v The Commonwealth of Australia [2015] FCAFC 160 at [54]–[55] per Allsop CJ, Flick and Perram JJ, where the court made two observations regarding the nature of land ownership: First, the proprietor of an estate in fee simple does not own the land itself. The land is held in radical title by the Crown; what the proprietor owns is the estate in fee simple which carries with it permanent rights of possession and so on. Secondly, the content of the bundle of rights constituting the fee simple is governed by common law, parts of which are nearly 800 years old. It is inherent in the nature of the common law that it is susceptible to variation by statute. Since the passage of the EPA Act the common law rights attaching to the fee simple in New South Wales have been varied extensively. Relevantly, in this case they have been varied by the operation of that Act and the Plan which has, at all material times, removed what would have been the appellants’ otherwise unfettered right to build on their land what they please. The consequence is that the rights actually owned by the appellants comprise: (a) the common law fee simple; but (b) diminished by the provisions of the EPA Act and the Plan.

This was further discussed by the High Court in Commissioner of State Revenue v Placer Dome Inc (2018) 93 ALJR 65 at [163] per Kiefel CJ, Bell, Nettle and Gordon JJ who stated: Property is not a monolithic notion of standard content and invariable intensity. Accordingly, to characterise something as a proprietary right … is not to say that it has all the indicia of other things called proprietary rights. Nor is it to say how far or against what sort of invasions the [right] shall be protected, because the protection given to property rights varies with the nature of the right. Statutory use of the term “property” correspondingly invokes a protean concept, the content of which is informed by the statutory context.2

2. See also Northern Territory v Griffiths [2019] HCA 7 at [67] per Kiefel CJ, Bell, Keane, Nettle and Gordon JJ. 19

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Australian Property Law

Property is a legal construct 1.8  Property can only exist where it is supported by a legal system that recognises it. There can be no property in the absence of a recognised enforcement regime. As noted by Finkelstein J in Wily v St George Partnership Banking (1999) 84 FCR 423 at 431, ‘From a lawyer’s perspective, the concept of property is inextricably interwoven with the content of legal rules and principles’. Similarly, J Bentham (Theory of Legislation, R Hildreth trans, Trübner & Co, London, 1864, p 111–13) concluded: ‘Property and Law are born together and die together. Before laws were made there was no property. Take away the laws, and property ceases’. The state that creates property can (by implication) limit its extent at will. Property rules determine when the community will recognise a person’s assertion of a right to use a particular resource. (C E Baker, ‘Property and its Relation to Liberty’ (1986) 134 University of Pennsylvania Law Review 741.) Native title rights are recognised in Australia because they have been accepted by the common law and this recognition has been reinforced within the statutory framework. Significantly, however, not all Indigenous cultural traditions are protected as property relationships because they are not derived from any connection with Crown sovereignty. In the words of the majority in Members of the Yorta Yorta Aboriginal Community v Victoria (2002) 77 ALJR 356 at [44]: The only rights or interests in relation to lands or waters, originating otherwise than in the new sovereign order, which will be recognised after the assertion of that new sovereignty are those that find their origin in pre-sovereignty law and custom.

Thus, the Australian legal system is prepared to recognise native title rights in land, but only where those rights have their origin in pre-sovereignty law and custom. The rationale underlying this is that pre-sovereignty rights may encumber the underlying radical title of the Crown. Any post-sovereignty rights would, by parity of reasoning, be destroyed because following colonisation, the Crown became the absolute owner of all land and therefore was only bound by those rights that pre-existed its claim: see further discussion on this in Chapters 5 and 8. This reasoning illustrates the operational status property rights. They  only exist where they are supported by a legal and social framework that acknowledges and supports their existence.

Fragmentation of property 1.9  The relational nature of property means that it is possible for different forms of property relationships to be enforced against a single object or resource. Property relationships are capable of assuming a variety of different forms. Consider the following example as an illustration: 1. Rhea owns a fee simple in land; 2. Rhea leases the fee simple to Amanda for three years; 3. Rhea creates a will over the land for the benefit of a sole beneficiary, Tom; 4. Rhea enters into a mortgage with SaraBank giving the bank a security in the land; 5. Matt helps Rhea repay the mortgage instalments. In this situation five different forms of property relationship may potentially arise: Rhea holds a common law fee simple reversion in the land after the lease has been granted (discussed in Chapter 5). Amanda holds a three-year fixed-term lease interest (discussed 20

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in Chapter 7). Tom will acquire beneficial entitlement in the land pursuant to the will that, once probate is administered, is enforceable (discussed in Chapter 9). Matt may claim a constructive trust in the land based upon his contribution to the mortgage repayments (discussed in Chapter 9). If upheld, Rhea may hold a proportionate share of the property on trust for Matt. SaraBank holds a mortgage over the land that is known as a security interest (discussed in Chapter 15). The mortgage also creates a loan contract between Rhea and the bank that, if breached, will give SaraBank the right to sell the property so that the debt may be discharged. The above example highlights very clearly how a range of different forms of property interest may apply to a single object. Each of these property relationships is different in form but may nevertheless coexist because of their temporal or jurisdictional differences. The above example highlights the potential for multiple fragmentation of property rights over a single land parcel. Property relationships may be fragmented according to a number of factors: • the jurisdiction in which the interest is enforced; • the subject matter to which the interest relates: that is, whether the subject matter is tangible or intangible because this will affect the nature of the rights; • the duration of time for which the relationship exists: that is, whether the interest endures for a definite or indefinite period; • the culture in which the right is enforced: that is, whether it is enforceable within a tenure system or an indigenous system; • the moral atmosphere in which the right is claimed: this is relevant to new and developing rights; • whether the interest is created by statute.

Distinction Between Proprietary and Contractual Rights Nature of the distinction 1.10  There is an important difference between a property right and a contractual right.

A property right is enforceable against the rest of the world (in rem). A contractual right is only enforceable against the other parties to a contract (in personam). The enforceability of in rem rights is supported by a range of property remedies that entitle the holder to preclude anyone other than those with a better title from interfering with that right. By contrast, in  personam rights are only enforceable against other parties privy to an enforceable contract and are therefore supported by a range of personal remedies. While there is a fundamental difference in terms of enforceability between a property and a contract right, it is important to remember that a contract right is itself a resource that is capable of forming the subject matter of a property relationship. Thus, while enforcement of a contractual right is in personam, ownership of a contractual right is in rem because the right to contractual performance may be characterised in property terms. See, for example, the discussion by Stephen A Smith, Contract Theory 72 (2004), (arguing that the promissory basis of contract explains why a promise can be regarded as owning a right to the promisor’s performance of the promised act). Common examples of contracts that may be owned — the contracts being categorised as ‘intangible personal property’ or ‘choses in action’ — include: shares, life insurance policies and bank accounts. For a full outline of the different categories of rights and things capable of being ‘owned’ see the chart at the end of the chapter. 21

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Lease or licence? 1.11  In some circumstances a right that begins as a contractual right may be converted into a property interest. This is particularly apparent in the equity jurisdiction where the Courts of Chancery focus upon the intention underlying the transaction and the unfairness of denying the existence of a property interest. For example, a contract that is entered into for the benefit of a third party may be construed as a constructive trust where it would be unfair to deny an intention to confer a beneficial interest upon a third party. Further, a contract that confers possession may be interpreted as creating a lease because in substance, the possession that is conferred is exclusive in nature. In this respect, it is important to understand the difference between a pure contractual relationship and a contractual relationship that may be interpreted as conferring a property relationship. 1.12  This distinction is well illustrated through the cases that have dealt with contractual licences and leases. The decision of the High Court in Cowell v Rosehill Racecourse Co Ltd is extracted below.

  Cowell v Rosehill Racecourse Co Ltd  (1937) 56 CLR 605 Facts: The appellant bought a ticket for the races at the Rosehill Racecourse. Subsequently, the plaintiff was asked to leave the races but the plaintiff refused to go. The appellant was subsequently physically removed by the racecourse officials. The appellant sued Rosehill Racecourse for damages for assault. Rosehill Racecourse defended the claim arguing that the plaintiff was trespassing on their land and refused to leave and so they forced him to leave using no more force than was necessary. In reply, the appellant argued that Rosehill Racecourse was conducting a race meeting and that upon purchasing his entry, the appellant acquired an irrevocable licence to remain and watch the spectacle. Latham CJ: The plaintiff appellant sued the defendant respondent for damages for assault. The defence was that the plaintiff was trespassing on the defendant’s land and that the defendant’s servants and agents requested him to leave the land, which he refused to do, and the defendant’s servants and agents thereupon removed him, using no more force than was necessary for that purpose, and that the said removal of the plaintiff was the alleged assault. The plaintiff, for reply on equitable grounds, said that the defendant was conducting a race meeting on the said land and that in consideration of the plaintiff paying four shillings the defendant promised to allow him to remain on the racecourse and view the races, gave him leave and licence to enter and remain on the racecourse for that purpose and promised not to revoke the licence; that the plaintiff paid four shillings, but the defendant, in breach of the promise alleged, revoked the leave and licence and assaulted the plaintiff in ejecting him from the racecourse. The defendant demurred to this pleading and the Full Court of the Supreme Court of New South Wales upheld the demurrer, following Naylor v Canterbury Park Racecourse Co Ltd, and ordered that judgment be entered for the defendant. The plaintiff has appealed to this court. The question which arises in the appeal is whether this court should follow the decision in Hurst v Picture Theatres Ltd. The Full Court of the Supreme Court of New South Wales in Naylor’s Case refused to apply Hurst’s Case in New South Wales. The facts pleaded in this case are indistinguishable from those in Hurst’s Case. In Hurst’s Case it was held that Wood v Leadbitter, even if originally rightly decided, was no longer good law. In Wood v Leadbitter it was decided that a mere licence, that is, a permission to do something which without permission would be unlawful, was revocable, whether it was under seal or not, but that a licence coupled with an interest was not revocable. Kerrison v Smith shows that where a licence is revoked the actual revocation may (if there be a contract) 22

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be a breach of contract for which damages are recoverable. Thus a person ejected from a place of entertainment could in such a case at least get back the price of admission which he had paid. It was not suggested in Wood v Leadbitter that the existence of a contract not to revoke the licence made the licence irrevocable in the sense that it could not be effectually (though possibly wrongfully) revoked. The doctrine of Wood v Leadbitter is clear and coherent. If a man creates a proprietary right in another and gives him a licence to go upon certain land in order that he may use or enjoy that right, the grantor cannot divest the grantee of his proprietary right and revest it in the grantor, or simply determine it, by breaking the agreement under which the licence was given. The grantee owns the property to which the licence is incident, and this ownership, with its incidental licence, is unaffected by what purports to be a revocation of the licence. The revocation of the licence is ineffectual. Easements and profits à prendre supply examples of interests to which licences to enter and remain upon land may be incidental. The majority judgment in Hurst’s Case modified, if it did not reject, the law of Wood v Leadbitter by holding that a ‘right to see’ a spectacle was an interest which could be granted so that a licence to go into a theatre or a racecourse to see a play or to witness races was, when given for value, irrevocable because it was a licence coupled with an interest. Further, the majority judgment held that, in so far as Wood v Leadbitter rested upon the rule that no incorporeal hereditament affecting land can be created or transferred otherwise than by deed, the Judicature Act had radically changed the position. The court was now bound to give effect to equitable doctrines and would therefore ignore the absence of a seal and would (as in Frogley v Earl of Lovelace) grant an injunction to protect the right granted. The first ground of the decision, in my opinion, ignores the distinction between a proprietary right and a contractual right. In Wood v Leadbitter there was obviously a contractual ‘interest.’ The plaintiff had bought and paid for a contractual right to go upon land for the purpose of witnessing a spectacle. But this fact, which was treated as irrelevant in Wood v Leadbitter, is made the foundation of the first ground of the judgment in Hurst’s Case. In that case Buckley LJ interpreted ‘interest’ in a sense quite different from that in which the word was used in Wood v Leadbitter. The learned judge said that there was a grant of a right to come to see a spectacle. The licence is described as ‘only something granted to him for the purpose of enabling him to have that which had been granted to him, namely, the right to see.’ The ‘right to see’ is treated as the ‘interest’ which has been ‘granted.’ It is clear that the learned judge used the word ‘grant’ in a sense very different from that in which it was used in Wood v Leadbitter. It was there used in relation to interests in land which were, if they existed at all, clearly proprietary interests. The right to see a spectacle cannot, in the ordinary sense of legal language, be regarded as a proprietary interest. Fifty thousand people who pay to see a football match do not obtain fifty thousand interests in the football ground. A contrary view produces results which may fairly be described as remarkable. The Statute of Frauds would be applicable. A person who bought a reserved seat might be held to have what could be called ‘a term of hours’ in the seat. The ‘interest’ of persons without reserved seats would, if regarded as proprietary interests, be more than difficult to describe. If the interests were held to be incorporeal hereditaments they would be quite new to the law — notwithstanding the strongly established principle of Keppell v Bailey. The feat would have been achieved of creating an easement in gross — an easement with a servient tenement, but without any dominant tenement. There is nothing in the majority judgments in Hurst’s Case to show that these consequences were appreciated when the case was decided. For the reasons mentioned, I cannot regard the transaction of buying a ticket for an entertainment as creating anything more than a contractual right in the buyer against the seller — a right to have the contract performed. For the breach of such a right there is a remedy in damages, but the remedies applicable to the protection of proprietary rights are not legally (or equitably) appropriate in such a case. There is, strictly, no grant of any interest. What is created is something quite different, namely, 23

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contractual rights and obligations. In Wells v Kingston-upon-Hull, Lord Coleridge CJ pointed out the difference between the creation of a proprietary interest in land by a contract relating to the possession or enjoyment of land and the creation of a contractual right to use land under conditions, the owner of land retaining possession and all rights over it. In that case a dock was ‘let’ to a ship-owner for the purpose of repairing a ship, but it was held that no interest in land was created (See also Frank Warr & Co Ltd v London County Council; JC Williamson Ltd v Lukey and Mulholland; Commissioner of Stamp Duties (NSW) v Yeend — cases of rights to sell refreshments in a theatre or on a racecourse). In my opinion, the first ground upon which Hurst’s Case was decided (that there was in that case a licence coupled with an interest) cannot be supported. The second ground of the decision in Hurst’s Case is based upon the opinion that the plaintiff in Wood v Leadbitter failed because he did not have a grant under seal of the right which he claimed. It is true that the absence of a seal was a complete reply, in an action at law, to the contention of the plaintiff that he had an interest in the land upon which a race meeting was being held. But in fact the presence of a seal would not have assisted the plaintiff to establish the impossible proposition that he had an easement in gross. It is true that, as the majority judgments in Hurst’s Case state, a grant of an interest in land need not, in order to be effective in a court of equity, be made by deed, and that, since the Judicature Act, this rule is enforced in all divisions of the High Court in England (Walsh v Lonsdale). But this proposition does not justify the assertion that interests in land can, since the Judicature Act, be created by simple contract even though, before that Act, they were of such a character that they could not be created by deed as interests in land. Buckley LJ applies to the facts of Hurst’s Case the statement of Parker  J in James Jones & Sons Ltd v Tankerville (Earl) that an injunction restraining the revocation of a licence ‘merely prevents’ the defendant ‘from breaking his contract, and protects a right in equity which but for the absence of a seal would be a right at law, and since the Judicature Act it may well be doubted whether the absence of a seal in such a case can be relied on in any court.’ This statement was made with respect to a proprietary right (a profit à prendre) and it is a begging of the question to apply it to a case in which the matter in dispute is whether the alleged interest is such that it can be an interest in land, whether created by deed or not. Frogley v Earl of Lovelace, which is relied upon in Hurst’s Case, was a case of an agreement for a profit à prendre, an incorporeal hereditament. Thus the second ground for the majority judgments in Hurst’s Case cannot, in my opinion, be supported. I regard the dissenting judgment of Phillimore LJ as a convincing statement of the true position both at law and in equity. In New South Wales the Judicature Act is not in force, but the Common Law Procedure Act 1899, sec 97, provides that ‘the plaintiff may, in answer to any plea, reply facts avoiding such plea upon equitable grounds.’ In this case the plaintiff relies upon an equitable replication containing an allegation that the defendant for consideration agreed not to revoke the licence to enter and remain upon the racecourse. Whether this replication is good or not depends upon whether such an agreement, if proved, prevents in equity the revocation of the licence in such a sense as to make entirely ineffectual anything purporting to be a revocation of the licence. Except in Hurst’s Case there is no authority for the proposition that such a licence cannot be revoked at law in cases where no proprietary interest has been granted. The question is whether there is any principle of equity which prevents the effectual revocation of such a licence even though the revocation be a breach of contract. No authority apart from Hurst’s Case has been cited to show that this is a principle of equity. Whether the replication is good or bad depends, not upon rules of pleading, but upon whether the facts alleged constitute a good answer in equity to the plea raised by the defendant that the plaintiff was a trespasser. If his licence was effectually revoked, though wrongfully, he was a trespasser, and the removal of him from the racecourse without the use of undue force did not constitute an assault. The plaintiff can escape from the position of being a trespasser only by showing that the licence was not effectually revoked. The only argument 24

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to support this proposition is to be found in the contention that the defendant cannot be heard to rely upon his own wrongful act in revoking the licence which he had agreed not to revoke. If the principle to be applied is a principle that the defendant cannot rely upon his own breach of contract, then that principle would surely have been mentioned in the reports of decided cases. No reference, however, has been made to any cases decided upon the basis of this principle. It is common ground that an equitable replication under the Common Law Procedure Act 1899, sec 97, can be sustained only where the facts pleaded are such that a court of equity would upon the basis of those facts have granted an absolute unconditional and perpetual injunction (See Stephen’s Principles of Pleading, 7th ed (1866), at p 210; Gee v Smart). It is clear that equity would never have decreed the specific performance of a contract to provide an entertainment. Equity would never have granted an unconditional injunction restraining the proprietor of a place of entertainment from excluding from that place a person who had bought a ticket of admission. Any injunction granted would necessarily have been subject at least to the condition that the plaintiff coming into equity should behave himself with due propriety during the entertainment. But it is urged that equity would have granted an unconditional and perpetual injunction restraining the defendant from setting up an unconscientious plea, namely, a plea based upon his own wrongful withdrawal of a licence. This argument is suggested in a note to the article of Sir John Miles criticising Hurst’s Case in the Law Quarterly Review, vol 31, p 217. In the first place there is no authority to support the contention in such a case as the present case. The real rule is that an equitable defence to a common law action is admissible under the Common Law Procedure Act only ‘where it discloses facts which would entitle the party pleading it to an absolute and unconditional injunction in a court of equity against the judgment which the opposite party might otherwise have obtained at law’ (Stephen’s Principles of Pleading, 7th ed (1866), at  p  210). If the suggested principle were sound, it is remarkable that it was never advanced as a practical means of avoiding the law as laid down in Wood v Leadbitter. Secondly, the contention appears to me to be based upon an idea that equity will always do whatever it can to bring about the specific performance of any contract according to its terms. The argument rests upon a vague assumption that equity would, by limiting the pleading in a common law action of a party who had broken a contract, seek to prevent him from merely paying damages for his breach if an injunction against his pleading would prevent him from gaining some ‘unconscientious’ advantage by his breach. There is no such general equitable principle (see per Pollock CB, Hyde v Graham). In cases of wrongful dismissal, for example, the only remedy for the breach of contract is to be found in damages. Even though the employer admits the wrongful dismissal, he cannot be ordered to re-employ his former servant. If the servant under an ordinary contract of service sues for wages in respect of a period after dismissal, the employer would never have been restrained from pleading that he had dismissed him, though wrongfully. In such cases — and there are many others, for example, sale of goods and commercial contracts generally — equity left the parties to their remedies at law. The equitable remedies of injunction and specific performance were never applied merely or generally on grounds of unconscientiousness. They would be used to protect proprietary rights, to enforce negative agreements, and, in special cases only, to enforce affirmative agreements (Doherty v Allman). These agreements never included contracts to provide an entertainment in a particular place in return for payment. Thus I am unable to accept the contention that equity would at any time have restrained the defendant from pleading the replication in question. This aspect of the case should be considered in relation to established principles of equity and not in relation to the arguments ab inconvenienti which are so prominent in the majority judgments in Hurst’s Case. There are arguments from inconvenience on both sides. The right to see an entertainment is doubtless a valuable right. It is a right for which people are prepared to pay and which they esteem. There are other rights, the exercise of which involves entry upon land, which are still more valuable from a practical point of view. Consider, for example, the case of a servant 25

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who is employed for a term to do work upon certain premises. He is wrongfully dismissed. He is then excluded from the premises. His right to earn a living in accordance with a lawful contract is a right at least as important as a right to witness an entertainment. The principle approved in Hurst’s Case would entitle him to go into and remain upon the premises, although he had been dismissed from his employment, and to obtain damages for assault if he were forcibly removed. Similarly an ordinary building contract enables the building contractor to go upon land for the purpose of conducting building operations so that he can perform his contract and earn his expected profit. This right continues to exist even if the building owner wrongfully repudiates the contract. But the only remedy of the building contractor for an infringement of the right is in damages. If he goes on the land against the will of the owner he may be treated as a trespasser. The adoption of the principle involved in Hurst’s Case would alter these established rules. Consider further a case where a building devoted to entertainment becomes overcrowded by persons who have bought tickets. This may happen without any default on the part of the person in control of the building. If, however, the legal position is as stated in Hurst’s Case, it is impossible for anyone (except possibly a constable) to remove any of the persons, either for the safety of the audience as a whole or in order to secure the observance of the law, without subjecting himself to the possibility of numerous actions for assault. It is doubtful whether such consequences were realised in Hurst’s Case. On the other hand it might be said that there is an implied condition that the licence to each member of the audience might be revoked in the interests of the safety of the audience or in order to secure the due observance of the law or for some other lawful reason. Such a view really constructs or invents a complicated contract between the parties and it would raise new and rather difficult questions. Why, for example, should A be asked to leave the building rather than B? Would it be left to the judgment of the controller of the building to determine how many persons should be asked to leave? In other cases it might be sought to avoid what would be described as an unreasonable extension of Hurst’s Case by saying that the facts show that the parties intended that the licence should be revocable in certain conditions. I refer again to the case of a dismissed servant. Here, it appears to me, it is difficult to suggest in explicit terms an appropriate condition. It would be necessary to attach to the contract an implied condition that the employer might revoke the implied licence to come upon his premises if at any time he should determine the contract of employment even though he did so wrongfully. Such a view appears to me to be an unreal method of dealing with the position. A much more realistic approach is provided by the application of the simple principle of Wood v Leadbitter, namely, that no ‘grant’ of any proprietary right, that is, of any jus in rem, has been made to the plaintiff. He has simply obtained a contractual right which is enforceable in personam by an action for damages. The denial of this principle will create more difficulties than are thought to be involved in its continued assertion. I agree with what Jordan CJ says as to ‘common sense and practical convenience’ in Naylor’s Case. Hurst’s Case has been criticised again and again by learned writers, although it has necessarily been accepted as an authority in Great Britain by subordinate courts (See references given in Hanbury’s Modern Equity (1935), p 118). The question, therefore, as it presents itself to me, is whether this court should hold itself bound by Hurst’s Case for the simple and single reason that it is a decision of the Court of Appeal in England. In matters affecting title to property, where rights have been paid for and where persons have acted upon the faith of established decisions, it is very desirable that those decisions should be followed, if possible, even though a court not strictly bound by a particular decision should be of opinion that it was wrong. So also in cases affecting mercantile practice. See Sexton v Horton where it was also said by Knox CJ and Starke J that unless a decision of the Court of Appeal was manifestly wrong it should be followed. In Smith v Australian Woollen Mills Ltd a decision of the Court of Appeal was not followed because it was held to be inconsistent with established principles. I am of opinion, for the reasons which I have stated, that Hurst’s Case is manifestly wrong, and that it is not possible to extract from it any general principle which is consistent 26

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with well-recognised principles of law. Hard cases may be put on both sides. One cannot but sympathise with the position of a person who is asked to leave a place of entertainment without just cause. On the other hand, there are grave inconveniences involved in the adoption of Hurst’s Case as sound law, and it may be added that, if the law is not correctly stated in Hurst’s Case, such a person may successfully avoid indignity by recognising the law and going quietly. The decision in Hurst’s Case has never been considered by the Privy Council or the House of Lords, and in view of my clear opinion that it is a wrong decision I think that it is proper so to hold and to refuse to follow it in this court. In my opinion Naylor’s Case was rightly decided, and the Full Court was right in this case in upholding the demurrer. The appeal should be dismissed. Evatt J (in dissent): This is an appeal from the Supreme Court of New South Wales. The question has arisen upon a demurrer by the defendant to a replication of the plaintiff. The plaintiff in his declaration alleged an assault upon him by the defendant. The defendant, in its third plea, justified the assault, alleging that, at the material time, the plaintiff was trespassing upon certain land of which the defendant was possessed, whereupon molliter manus imposuit. The plaintiff’s replication (purporting to be on equitable grounds under sec 97(1) of the Common Law Procedure Act 1899 (NSW) made the following allegations, which must here be taken as established:— (i) The defendant was conducting a race meeting upon the land of which it was possessed. (ii) The defendant agreed with the plaintiff (a) that, on payment of four shillings by the plaintiff, it would allow the plaintiff to enter the land, and (b) that it would allow the plaintiff to remain on the land for the purpose of attending the race meeting and viewing the races, and (c) that, until the end of the race meeting, the defendant would not revoke the plaintiff’s licence to remain on the land. (iii) Performance by the plaintiff of the contract upon his part, payment being followed by entry on the land pursuant to the agreement. (iv) Wrongful breach of the agreement by the defendant’s purporting to revoke the licence during the period of the race meeting. The questions raised are, first, whether, in the circumstances I have summarised above, according to the law of England and of every State in Australia where law and equity are administered concurrently, the forcible ejection of the plaintiff by the defendant amounts to an actionable assault; and, second, whether in the State of New South Wales the plaintiff is deprived of his remedy for damages for assault by reason of the fact that, although equitable principles must be taken cognisance of by the Supreme Court of New South Wales on its common law side, this is subject to the requirements of sec 97 of the Common Law Procedure Act (which allows equitable replications), and those requirements have not been observed. Of course, the first of these two questions is of supreme importance, and the argument of the respondent to this court was a direct challenge to the correctness of the decision of the Court of Appeal in the case of Hurst v Picture Theatres Ltd, which was pronounced in July 1914, nearly twenty-three years ago. No doubt that decision, or part of the reasoning for the decision, was subjected to criticism at the hands of some commentators. One writer asserted that Hurst’s Case was based on a ‘spurious’ equity, but the supposedly spurious coin has become part of the accepted currency of the law. For, though at first a little grudgingly perhaps, its accuracy has long since been recognised by the leading text writers, and works like Smith’s Leading Cases and Pollock on Torts and Salmond on Torts have long declared the law of England in strict accordance with it. I shall refrain from lengthy quotation, but one observation of Professor P H Winfield should be referred to:— Two minor improvements in the law of trespass may be mentioned. Until the present century, a man might possibly be liable for trespass in two instances which any layman 27

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would have considered unjust: first, if he forcibly re-entered his land in pursuance of a right to do so and with no more force than was necessary; and secondly, if he refused to comply with the arbitrary request of the occupier to leave premises (eg a theatre) for admission to which he had paid. The Court of Appeal has rid the law of these hereditates damnosae’: Law Quarterly Review, vol 51, p 257. Why should this court not follow Hurst’s Case? So far as I can ascertain, it has always been regarded as declaring the law of England by the Courts of the Dominions and of Ireland before the establishment of the Irish Free State. For instance, in Heller v Niagara Racing Association, Hodgins JA, of the Ontario Appellate Division said:— It appears to be settled law in England that a licence granted by the sale of a ticket includes a contract not to revoke the licence arbitrarily, which contract entitles the purchaser to stay and witness the whole performance, provided he behaves properly and complies with the rules of the management, and that this licence and agreement, if given for value, is an enforceable right (Hurst v Picture Theatres Ltd). There is no reason why this court should not adopt what seems to be a most reasonable view, having regard to modern conditions. Later, Ferguson JA said that Hurst’s Case had been followed in numerous cases in England and in this country (See Cox v Coulson; British Actors Film Co Ltd v Glover; Said v Butt; Hubbs  v Black). In the case of Sexton v Horton, decided by this court ten years ago, it was stated by Knox CJ and Starke J that unless some manifest error is apparent in a decision of the Court of Appeal, this court will render the most abiding service to the community if it accepts that court’s decisions, particularly in relation to such subjects as the law of property, the law of contracts, and the mercantile law, as a correct statement of the law of England until some superior authority has spoken. If this court declines to follow Hurst’s Case on the present occasion the legal situation created will be most confusing. Hurst’s Case has been regarded as a binding authority by those courts in the several States of Australia where equity and law are administered concurrently. In future, they will be placed in the dilemma of deciding between a decision of this Court, and a longestablished decision of the Court of Appeal. If they follow the decision of this court, an appeal to the Judicial Committee may be brought direct from any of the Supreme Courts of the various States. In England, moreover, Hurst’s Case would certainly be followed, only the House of Lords being at liberty to overrule it. Sec 74 of the Commonwealth Constitution was devised to preclude or restrict appeals to the Judicial Committee in constitutional cases of Australian concern only. But the prerogative to allow an appeal by special leave was left remaining, so that there might be no contradictory ruling of Empire courts as to the general principles of the common law or of equity. I feel strongly that it is a mistake on the part of this court to proceed to an independent review of the correctness of Hurst’s Case, and, with all respect, I think the Supreme Court of New South Wales should not have taken liberty to re-examine that decision as it did very recently in Naylor’s Case. As a result of that action, it is Naylor’s Case which is really under review on the present appeal. But, if Hurst’s Case is to be reviewed, I am unable to agree that it was ‘manifestly erroneous,’ to use the expression of this court in Sexton v Horton. In his judgment, Buckley LJ emphasised that the patron of the entertainment had expressly bargained for ‘the right … to attend a performance from its beginning to its end’. That being so, it was a very inadequate legal description of the relationship between the parties to say simply that the patron was a licensee upon the theatre proprietor’s ground; it was an essential feature of the relationship that, during the currency of the performance, the occupier of the land was bound to refrain from exercising his legal rights as occupier for the purpose of ejecting the patron from the place of entertainment. And it is to be noted that, in the present case, the pleadings specifically allege that it was a definite part of the contract between the parties that the defendant should not exercise its legal power or 28

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right to revoke the plaintiff’s licence to remain on the racecourse throughout the period of the race meeting. But, before proceeding to examine certain aspects of the decision in Hurst’s Case, it is convenient to dispose at once of the second part of the present appeal, and determine whether the Common Law Procedure Act, although it allows equitable pleas and replications, does not enable the Supreme Court on its common law side to give effect to Hurst’s Case. I am clearly of opinion that the New South Wales statute can be applied so that, if Hurst’s Case is to be regarded as good law in England, the plaintiff would be entitled to judgment on the present demurrer. That opinion is, I gather, shared by other members of this court. There can be no question that Hurst’s Case decided that, under circumstances closely corresponding to those admitted to exist in the present case, the person forcibly removed from the place of entertainment became entitled to recover damages for assault. In other words, by virtue of the Court of Appeal’s application, concurrently, of the principles of common law and of equity, the plaintiff succeeded in an action at law. In New South Wales, sec 97(1) of the Common Law Procedure Act entitled the present plaintiff to answer the defendant’s plea by alleging facts ‘avoiding such plea upon equitable grounds.’ Similarly, under sec 95(1) of the Act, a defendant at law who would have become entitled to obtain equitable relief against a judgment at common law is given a statutory right to plead the facts showing that he has a right to obtain equitable relief against the enforcement of the common law judgment and to plead such facts at law by way of equitable defence. It is true that, in England, between the passing of the Common Law Procedure Act in 1854 and the introduction of the Judicature system some twenty years later, a rule was established in accordance with which equitable pleas and replications were allowed by the courts of common law only where, on the facts there pleaded, a court of equity would have decreed an absolute, unconditional and perpetual injunction (Bullen and Leake’s Precedents of Pleading, 3rd ed (1868), p 568). In the case of Wood v Copper Miners’ Co, Jervis CJ suggested (in the year 1856) that the rule as to ‘perpetual, unqualified and continued injunction’ was not necessarily applicable to every case of an equitable pleading. But the general rule was applied until the passing of the Judicature Act, and it has always been recognised in New South Wales in administering the equitable pleading provisions of the Common Law Procedure Act. Of course, the reason for the rule lay in the practical necessities of the case, the common law courts possessing no machinery for doing more than pronouncing judgment either for the plaintiff or for the defendant on specific issues. But, as Ferguson J pointed out of equitable pleas in Rance v Kensett, ‘where the issue raised can be effectively dealt with by such a judgment, there is no reason why the plea should not be pleaded.’ The present defendant’s argument is that the facts admitted by the demurrer do not enable the plaintiff to recover damages for assault, because if, at the time of the plaintiff’s ejection from the racecourse, he had applied to the Supreme Court in equity to restrain the revocation of his licence, the Supreme Court would not have granted him an injunction which was ‘absolute, unconditional and perpetual.’ This is the gist of the Supreme Court’s decision in Naylor’s Case. The argument is that, under the contract between the parties, there was an implied obligation upon the plaintiff to behave himself properly during the progress of the race meeting; therefore an injunction restraining the revocation of the licence would have been subject to the condition that the plaintiff should behave himself properly during the race meeting. In my opinion this method of argument quite misunderstands the purpose of secs 95 and 97 of the Common Law Procedure Act. Those sections look to the situation as it exists when the proceedings at law are being taken. If at that time the Supreme Court in equity would give relief (a) to a defendant at law against the enforcement of a common law judgment which was being sought by the plaintiff at law in respect of a good common law claim, or (b) to a plaintiff at law against a defendant at law who was setting up a plea contrary to the equities then existing between the parties, then the defendant or plaintiff in the common law court was entitled, by the statute, to allege and prove before the court of common law the facts which would have justified 29

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the Supreme Court in equity in interposing its jurisdiction to restrain the defendant or plaintiff in the common law action from enforcing mere legal rights. In other words, the ‘absolute, perpetual and unconditional injunction’ to which the established rule refers is an injunction restraining the bringing of a claim or the setting up of a defence contrary to equitable principles, not restraining some act as at some earlier point of time. Stephen points out that an equitable pleading should disclose facts entitling the party pleading to an absolute and unconditional injunction ‘against the judgment which the other party might otherwise have obtained at law’ (Principles of Pleading, 6th ed (1860), p 197; italics are mine). It is clear that the relevant time is the time when the common law action is proceeding. No doubt, in determining the present existence of an equity to relief against the inequitable use of the common law courts, the court of equity would necessarily have to pay regard to the antecedent transaction between the parties which was entered into prior to the commencement of the action at law. But, none the less, the Supreme Court on its common law side, once seized of the issues raised by equitable pleadings, has to look at the matter from the point of view which the Supreme Court in equity would take if it was hearing the case simultaneously with the common law action, and was placed in possession of all the facts pleaded and proved at common law. If we apply the principle just elaborated to the present case, it is plain that the argument suggesting that any injunction granted would be conditional upon the plaintiff’s behaving himself properly during the race meeting, merely confuses the issue. The relevant time to define the attitude of a court of equity is the time of the proceedings for assault, ie, here and now. The facts material to the question of intervention by a court of equity have all been pleaded, and they are now before us. It must be assumed that, throughout the race meeting, the plaintiff was not guilty of any such improper behaviour or conduct as would have justified the defendant in rescinding the contract between the parties. And the question is whether, by the operation of equitable principles, the equitable replication pleaded avoids the plea. It does avoid the plea if, on the facts, a court of equity should restrain the defendant from pleading that the plaintiff was a trespasser at a time when, according to Hurst’s Case, in the eyes of a court of equity he was not a trespasser but the holder of an irrevocable licence to remain on the property. Assuming Hurst’s Case to be good law, it seems equitable that a court of equity should restrain the defendant at law from pleading that, by effectively revoking what he could not in equity revoke, and by deliberately repudiating his negative undertaking not to exercise his legal right to revoke, he became entitled to treat the plaintiff as a trespasser. Such an injunction, if granted at all, would be, not a conditional, qualified or temporary injunction, but an absolute, perpetual and unconditional injunction, restraining the defendant at law from setting up an obviously inequitable defence (Cf Professor Geldart’s note, Law Quarterly Review, vol 31, p 219, note (i)). Such an injunction would not only be perpetual, absolute and unconditional according to its terms, but it would leave the present plaintiff in the position at law established by Hurst’s Case, viz, the position of being successful in his action for damages for assault, for the only defence relied on would be avoided. As an illustration of the fact that no outstanding equities remain between the parties as at the time of the common law action, Hurst’s Case itself is conclusive. There the judgment was for the plaintiff for the damages caused by an unjustified assault. Nothing else was ordered to be done except that the defendant pay such damages. Further, even if the court had to consider the question as to the character of the injunction as at the time of the original revocation of the licence, the injunction ordered would still, I suggest, be ‘absolute, perpetual and unconditional.’ It would have addressed itself to the contract between the parties and restrained the defendant from ‘revoking the licence in breach of the contract.’ It is nothing to the point that the defendant could have lawfully revoked the licence or rescinded the contract on and by reason of the plaintiff’s breach of his own obligation to behave himself properly. For such revocation or rescission would not be ‘in breach of the contract,’ but would be permissible under the contract. So far as I know, it is not the practice of the equity court, when granting an injunction to restrain a particular breach of a contract containing a 30

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series of mutual promises and forbearances, to make the grant of the injunction conditional upon the continued performance by the plaintiff of his contractual obligations or to so express its order. For instance, when the court grants an injunction based upon the lessor’s covenant for quiet enjoyment, it is not necessary to state that the injunction is only to operate so long as the plaintiff, the lessee, continues to pay rent and otherwise perform the covenants on his part. As Lord St Leonards said in relation to covenants as between landlord and tenant, With respect to the negative covenants, if the tenant, for example, has stipulated not to cut or lop timber, or any other given act of forbearance, the court does not ask how many of the affirmative covenants on either side remain to be performed under the lease, but acts at once by giving effect to the negative covenant, specifically executing it by prohibiting the commission of acts which have been stipulated not to be done (Lumley v Wagner). Therefore, I think it is plain that despite the continued separation of the common law and equitable jurisdictions of the Supreme Court of New South Wales, the introduction of equitable principles into the former jurisdiction by the Common Law Procedure Act enables the present plaintiff to succeed in his action at law. The plaintiff in Hurst’s Case was able to succeed by virtue of equitable principles according to which the defendant’s attempt to set up the fact of trespass on land was defeated. But the question remains, was Hurst’s Case correctly decided? There are several aspects from which the decision may be regarded. First, it is critical of the strictly legal position laid down in Wood v Leadbitter. And certainly the judgment of Dodderidge J in Webb v Paternoster (quoted Holdsworth’s History of English Law, vol vii, p 328) contains a far more valuable analysis of licences than was given in Wood v Leadbitter. The Court of Appeal in 1915 thought it somewhat extraordinary that the rights and liabilities created by a contract to admit to an entertainment conducted publicly and for the profit of the entrepreneur, and perhaps the education or pleasure of the patron, could be treated, even by a court of law, as assimilable to a mere dispensation to the theatre patron to commit what otherwise would be a trespass on land. In actual fact, the rights and liabilities are not so assimilable and, in its modern developments, even the common law has recognised the inadequacy of the ‘bare licence’ theory as a description of the relationship between the parties (Cox v Coulson). The main part of the reasoning in Wood v Leadbitter was based on the well-known judgment of Vaughan CJ in Thomas v Sorrell, distinguishing there between licences or ‘dispensations’ (eg, to come into a man’s house), and licences coupled with a grant of property (eg, a licence to hunt and carry away the deer). It must be conceded that the ‘grants’ intended to be referred to in Wood v Leadbitter (a licence ‘coupled with a grant’) was a grant of some ascertainable property which is capable of being granted (Holdsworth’s History of English Law, vol vii, p 328). It may therefore be admitted that Lord Wrenbury went too far in assimilating the right to view an entertainment with the grant of a proprietary right in or over land or chattels. But, in my opinion, as an application of equitable principles to the complex relationship between entrepreneur and patron, Hurst’s Case is a convincing decision. As early as 1901, Cozens-Hardy MR suggested that Wood v Leadbitter might be of ‘very doubtful’ validity if equitable principles were to be applied to its facts (Lowe v Adams). From the point of view of equitable principles, the essence of the judgment of Buckley LJ is to be found in his references to Lord Parker’s judgment in James Jones & Sons Ltd v Tankerville (Earl), and to the passage on page 10 commencing: ‘There is another way in which the matter may be put.’ Buckley LJ’s view was (a) that a contract giving a licence to enter and remain on land solely for the purpose of viewing an entertainment should be regarded by a court of equity as not subject to arbitrary revocation during the entertainment by a party to the contract in his capacity as occupier of the land, and (b) that a court of equity should give efficacy to a contract not to exercise the legal right of revocation of the licence, by restraining the occupier, either from exercising such legal 31

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right, or, at any rate, from subsequently setting up to his own advantage his own breach of contract and his own attempted revocation of the licence. It is true that the observations of Lord Parker quoted by Buckley LJ were not made in a case precisely analogous to that of Hurst’s Case, because a recognised proprietary right, ie, a ‘grant’ was under consideration in James Jones & Sons Ltd v Tankerville (Earl). But Buckley LJ clearly thought that a court of equity should intervene in a case like Hurst’s Case by restraining the revocation of a licence in breach of contract. No doubt, Buckley LJ dwelt upon that part of the judgment in Wood v Leadbitter which emphasised the absence of an instrument under seal; and he indicated that pending the bringing into existence of the necessary deed a court of equity would make short work of such an objection. But, in so doing, Buckley LJ was answering the reasoning of Alderson B so far as it asserted or assumed that the plaintiff in Wood v Leadbitter would have succeeded if he had possessed an instrument under seal giving him the right to view the race. It is a fair comment that the critics of Hurst’s Case can hardly be allowed to set up as against Buckley LJ any error of pure law to be discovered in Wood v Leadbitter. But a broad and just principle of equity appears from the judgments of Buckley LJ and Kennedy LJ to the effect that, although a court of law will still treat the transaction between entertainment proprietor and patron as creating only a revocable licence, a court of equity should regard the licence as irrevocable in all proceedings in which equitable principles have to be recognised. A consequential rule is that a defence to an action of assault that the licence had been duly revoked by the proprietor, though good at law, would be contrary to the equitable principle of irrevocability of licence and the equitable principle should prevail so as to avoid the defence. It was the contrary view which, according to Kennedy LJ, led to ‘an astonishing conclusion’ (at p 12). He also regarded the contract as creating ‘an irrevocable right to remain until the conclusion of the performance’ (at p 13). I hope it is superfluous to add that neither Buckley LJ, nor Kennedy LJ, was unaware of the fact that the right to see a theatrical performance was not a proprietary right in the nature of an easement. Indeed, Kennedy LJ said that the plaintiff’s ‘interest,’ ‘whether you call it an easement or not, is an interest which I can now acquire in equity by parol’ (at p 14). And he referred to an important passage in Pollock on Torts, 9th ed (1912), at p 390, which I mention below. Further, the dissenting judgment of Phillimore LJ is of great significance, for he is not unwilling to concede (at p 18) that equity would give specific performance of the contract to see the entertainment. The main difficulty of Phillimore LJ was that, assuming that equity would intervene, the plaintiff in equity could not necessarily be regarded as having already occupied the legal position which springs into existence only after he obtains specific performance. In other words, although the licence would be regarded in equity as irrevocable, still, until a court of equity actually pronounced its order, the existing legal relationship between the parties should be deemed to continue. In support of this view Phillimore LJ adopted Pollock’s suggestion in the passage mentioned above, that the plaintiff might have obtained an injunction, and so have been restored to the enjoyment of his licence, but that, in the meantime, he should be deemed a trespasser. With respect, it is difficult to appreciate the force of the difficulty which alone seemed to prevent Phillimore LJ from concurring. The plaintiff in Hurst’s Case did not need to invoke the principle of Walsh v Lonsdale, for the assumption of Hurst’s Case was that no estate or interest in land was intended to be created by the contract. But equity’s intervention in order to prevent a party from exercising his legal rights in breach of a contractual obligation is based on broader grounds than the principle of Walsh v Lonsdale. If, as Phillimore LJ was prepared to admit, a court of equity would have restrained the revocation of Hurst’s licence, it could hardly treat the defendant as having improved his position at law solely because, in the nature of things, Hurst was unable to approach a court of equity before his forcible removal from the theatre. In other words, if a court of equity regarded the licence as irrevocable, why should 32

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it allow the wrongdoer, by subsequently saying ‘I revoked it,’ to obtain an advantage at law. This view subsequently seemed to commend itself to Sir F Pollock, who said: And is it now possible for a court having equitable as well as legal jurisdiction to treat as rightful in any sense an expulsion which a court of equity would have restrained if a motion could have been made in time?: Law Quarterly Review, vol 31, p 9; cf p 221. I think the fallacy in the criticism of Hurst’s Case lies in the continuous insistence upon discovering a proprietary right as a condition of equitable intervention. Sir J C Miles, whose criticisms of the decision in Hurst’s Case have been little more than re-echoed by the later commentators, seemed mainly concerned with ‘the purely legal grounds of the decision’ (Law Quarterly Review (1915), vol 31, pp 219–221), and was not so ready to deny its validity as an extension of equitable principles; nor did he seem to consider the equitable question as affected in any way by the supposed difficulty upon which Phillimore LJ really based his dissent. As a Canadian commentator has recently said, in relation to the theory that a strict ‘property’ interest must be the foundation of the intervention of equitable jurisdiction, the danger in the application of the limitation lies in the circumstance that unenlightened courts are apt to apply it as a limitation of their jurisdiction, except in orthodox property interest cases, even though the situation is one to which the injunctive method is peculiarly appropriate (Canadian Bar Review, vol 10, p 175). In my opinion, the appeal should be allowed, and judgment entered for the plaintiff on the demurrer.

Commentary 1.13 In Cowell v Rosehill Racecourse Co Ltd (1937) 56 CLR 605, the High Court held

that a contractual licence to enter a racecourse was not irrevocable and could not be construed as a property interest. If the contract had been construed as being irrevocable, it would have borne a greater similarity to a property right, because the availability of the remedy of specific performance would have, in effect, prevented the licensee from being removed from the premises. However, the fact that a contract may be enforced so that it has a similar effect to a property right does not mean that the contract is transformed into a property right. On the facts of Cowell v Rosehill Racecourse, the plaintiff sued the defendant for damages for assault after being removed from a racecourse that he had paid to enter. The defendant argued that the plaintiff was trespassing on the defendant’s land and the defendant had used no more force than was necessary to remove him. The plaintiff said that the defendant was conducting a race meeting and he had paid four shillings to enter and view the races and that the contractual licence was not revocable and so the defendant was in breach by ejecting him from the land. In reaching its determination, the Australian High Court referred to the doctrine in Wood v Leadbitter (1845) 13 M&W 838; 153 ER 351 where it was held that where a man creates a proprietary right in another and gives that other a licence to go upon land in order that he may use or enjoy that right, the grantor cannot divest the grantee of his proprietary right and revest it in the grantor or simply determine it by breaking the agreement. The grantee owns the property to which the licence is incident and is unaffected by any purported revocation of the licence. The court also referred to the conclusions of the majority in Hurst v Picture Theatres Ltd (1915) 1 KB 1 where it was held that a right to see a spectacle constituted an interest that could be granted; therefore, a licence to go into a theatre or a racecourse, to see a play or to witness races, was, when given for value, irrevocable. The High Court in Cowell ultimately rejected the conclusions of the Hurst decision to the extent that 33

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it ignored the distinction between a proprietary and a contractual right. Latham CJ held that a right to see a spectacle cannot, in the ordinary sense of legal language, be regarded as a proprietary interest. His Honour held that a distinction had to be made between the creation of a proprietary interest in land by a contract conferring possession or enjoyment of the land, and the creation of a contractual right to use the land pursuant to which the owner of the land retained possession and rights in that land. The opportunity to witness a performance is not an interest in property; it is not a tangible thing to be taken away from the land or out of the soil; it is no more than a personal advantage arising from the plaintiff ’s presence at the place where the licence, while unrevoked, authorised the plaintiff to enter and remain. Therefore the plaintiff was unable to recover damages in tort for forcible exclusion. The court further noted that a contract entitling a patron to admission to a public amusement does not confer any equitable title upon the holder entitling them to deny any subsequent revocation of that contract of admission. No right of a proprietary nature was created by the contract. As stated by Starke J at 618: The plaintiff had a licence given for value, coupled with an agreement not to revoke it. That was an enforceable right, and it was a breach of contract to revoke the licence. The replication in the present case expressly alleges that for a certain consideration the defendant ‘promised the plaintiff that it would not during the period of the race meeting and before the conclusion thereof revoke the said licence’. On demurrer, that allegation must be accepted as a fact, however improbable it may be as a matter of proof. It is, of course, true that a court of equity had jurisdiction to restrain the violation of stipulations in contracts. Normally, it so restrained the breach of purely negative stipulations, but exercised a wide discretion in the case of affirmative stipulations (Doherty v Allman). But rights in property and contractual stipulations must not be confused. In Hurst’s Case the plaintiff did not establish any right at law or in equity in any ascertainable property, but at best the breach of a contractual obligation. Assuming that a court of equity had jurisdiction to restrain and would by injunction have restrained such a breach — and cases may be put even of rights ‘to hear and see performances’, for instance, a contract for a box or a seat during a season of opera, in which equity might so act — still, the contract would not create a licence coupled with a grant or interest in any ascertainable property, which is the relevant consideration. The question is not whether a court of equity would grant an injunction for a breach of the contract, but whether an action of trespass is maintainable. Further, as Ashburner (Principles of Equity, 2nd ed (1933), p 19) observes, citing Cooper v Chitty, ‘there is no case in the books in which a court of common law held that an action could be maintained for trespass on account of some act of the defendant which was not a trespass at law at the time when it was committed and only became so ex post facto if the effect of a decree of specific performance were related back’.

The distinction between a lease and a licence represents the classic dichotomy between property and non-property; or, where the licence is coupled with a contract, between property and contract. A lease is an estate in land whereas a licence, ‘properly passeth no thing nor alters or transfers property in any thing, but only makes an action lawful, without which it would have been unlawful’: Thomas v Sorrell (1693) Vaugh 330 at 351 per Vaughan CJ. The fact that a licence may be coupled with a contract does not mean that it becomes proprietary, and this is so even where the contract contains a provision making the licence irrevocable. The availability of injunctive relief enforcing a negative stipulation within a contract is not automatic and its availability will not change the enduring contractual or permissory status of a licence. According to Australian cases, a contractual licence may be similar to a proprietary interest; however, depending upon the nature of the contract, this ‘similarity’ does not mean that it amounts to a property interest. As noted 34

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by Dixon J in Cowell v Rosehill Racecourse Co Ltd (1937) 56 CLR 605 with respect to a contractual licence to enter and witness the races: … no right of a proprietary nature is given. The contract is not of a kind which courts of equity have ever enforced specifically. It is not an attempt to confer a right by parol agreement which at law might have been effectually granted by a deed. There is no clear negative stipulation the breach of which would be restrained by injunction.

See also Hinkley v Star City Pty Ltd [2011] NSWSC 1389 at [135] where Ward J noted that ‘an owner (or occupier) of a public venue such as a racecourse (or casino), not having a statutory power or some form of governmental or administrative control, does not have an obligation to afford natural justice when deciding to exclude a person from that venue, even though it may be in breach of a contractual obligation in so doing’. English cases have generally followed the same principles with the exception of the English Court of Appeal in Errington v Errington and Woods [1952] 1 KB 290, where Lord Denning suggested that the availability of equitable remedies to enforce contractual licences may give them ‘a force and validity of their own’. His Honour suggested that in assessing whether a transaction was a licence or a lease: Broadly speaking, we have to see whether it is a personal privilege given to a person (in which case it is a licence), or whether it grants an interest in land (in which case it is a tenancy). At one time it used to be thought that exclusive possession was a decisive factor. But that is not so. It depends on broader considerations altogether. Primarily on whether it is personal in its nature or not.

This decision has not been endorsed by subsequent English cases that have consistently rejected the characterisation of a contractual licence as anything other than a purely in personam right. Indeed, the House of Lords has held that the existence of exclusive possession is the primary indication of a lease and an estate in land and in its absence, a licence should never be characterised as a proprietary estate. In Street v Mountford [1985] AC 809, Lord Templeman expressly rejected the conclusions of Errington v Errington and Woods [1952] 1 KB 290, stating at 820: … in my opinion in order to ascertain the nature and quality of the occupancy and to see whether the occupier has or has not a stake in the room or only permission for himself personally to occupy, the court must decide whether upon its true construction the agreement confers on the occupier exclusive possession. If exclusive possession at a rent for a term does not constitute a tenancy then the distinction between a contractual tenancy and a contractual licence of land becomes wholly unidentifiable.

This was subsequently confirmed in Cameron Ltd v Rolls Royce Pty Ltd [2007] EWHC 546 (Ch) at 18–22 and Watts v Stewart [2016] EWCA Civ 1247 at [35]–[39] It should also be remembered, as outlined by Lord Neuberger in Berrisford v Mexfield Housing Co-Operative Ltd (2012) 1 AC 955 at [63], that the fact that the parties may have thought they were creating a lease but not done so, is no reason for not holding that they have, in fact, agreed to create a contractual licence.

Overview of the distinction between property and contract 1.14  In examining the distinction between proprietary and contractual interests the

following points are relevant: • property is in rem whereas contract is in personam; • property confers different rights to contract. These rights may overlap but the foundation of all in rem proprietary interests is the right to exclude; 35

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• some contracts may commence as in personam rights; however, because of their character, come to be treated as proprietary interests. A lease contract, where a lessor confers exclusive possession upon a lessee, will create a lease estate; • a lease should be distinguished from a licence. A licence is merely permission to enter and cannot constitute a property interest although it may be coupled with a contract. In Cowell the majority held that because the contractual licence conferred nothing more than contractual rights the only remedy was that of damages. In dissent Evatt J argued that in appropriate cases an injunction could be awarded to restrain actions in breach of contract. The availability of such relief should not be regarded as transforming a contractual right into a property right; • property can describe many different relationships between a person and an object or resource and the existence of a contract does not mean that the relationship can never be regarded as proprietary. It is possible for a relationship to confer both contractual and proprietary rights.

Rationales for ‘private’ property 1.15  Western property interests are defined by their private status; owners have the

capacity to exclude the rest of the world. This characteristic has come to be accepted as the primary definitional feature of the property ‘stack’ of rights. In the words of Penner, ‘The “Bundle of Rights” Picture of Property’ (1996) 43 UCLA Law Review 711 at 742: The right to property is the right to determine the use or disposition of an alienable thing in so far as that can be achieved or aided by others excluding themselves from it, and includes the right to abandon it, to share it, to license it to others (either exclusively or not), and to give it to others in its entirety.

The notion of excludability incorporates a range of powers including: control and use of the property; a right to transfer or sell the property; the right to any benefit flowing from the property (apart from Crown reservations); and a general right to exclude others from the property. Excludability is not, however, an absolute concept. It does not allow the holder to use the property in a manner that interferes with the private property rights of surrounding owners and it does not entitle the holder to use the property in a manner that interferes with public property, health or safety rights. The institution of private property has been rationalised in Western society in a number of different ways. It provides great benefits in its promotion of individual liberty, personal space and human dignity. The ‘parcelisation of land is a relatively low-transaction-cost method of inducing people to “do the right thing” with the earth’s surface’: R C Ellickson, ‘Property in Land’ (1993) 102 Yale Law Journal 1315 at 1327. Private property confers rights that ‘preserve the owners position as the exclusive agenda setter for the owned thing’: L Katz, ‘Exclusion and Exclusivity in Property Law’ (2008) 58 University of Toronto Law Journal 275. Some of the individual and social advantages of private property may be summarised as follows: • private property protects privacy; • private property rewards labour: it is a fair exchange for money/labour; • private property promotes security: society grants ‘exclusive possession’ in return for compliance with social conditions; it is a social construct; 36

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• private property has personal and economic incentives: it promotes economic and individual happiness; • private property promotes personal liberty because it provides individuals with a ‘sphere of self-assertion’: M R Cohen, ‘Property and Sovereignty’ (1927) 13 Cornell Law Quarterly 8. Counterbalanced against these advantages is the awareness that private property rights have had a dramatic effect upon the social, economic and environmental landscape of the  world. Excludability has become synonymous with social and economic power. An owner acquires the capacity to control and exclude, which is concerning if there are moral issues associated with the imposition of such rights or, if the object or resource is important to human flourishing or where the imposition of such rights generates social and economic inequity. Private ownership can facilitate social and economic inequality and exploitation as well as breaches in human and environmental rights. This tension was well articulated by M R Cohen, ‘Property and Sovereignty’ (1927) 13 Cornell Law Quarterly 8, who argues that the capacity of private property to detrimentally impact human life means that it is crucial to implement a proper balance between private ownership and state regulation: We have seen the roots of property in custom and in the need for economic productivity, in individual needs of privacy and in the need for social utility. But we have also noted that property, being only one among other human interests, cannot be pursued absolutely without detriment to human life. Hence we can no longer maintain Montesquieu’s view that private property is sacrosanct and that the general government must in no way interfere with or retrench its domain. The issue before thoughtful people is therefore not the maintenance or abolition of private property, but the determination of the precise lines along which private enterprise must be given free scope and where it must be restricted in the interests of the common good.

In this section we briefly examine some of the different philosophical perspectives, which both defend and critique the institution of private property.

Classical liberalism: natural rights and the social contract 1.16  John Locke famously argued that humans were, originally, born into a state of nature

and in this state they were rational, tolerant and happy, and naturally enjoyed universal, ‘state of nature’ rights of life, liberty and property. Locke felt that humans were by nature ‘free, equal and independent’ and natural law meant ‘no one ought to harm another in his life, health, liberty or possessions’. Natural law protected the right to property that individuals naturally accrued through their labour. These ‘primitive’ rights were subsequently, according to the theorists, incorporated into the social framework via an underlying social contract. When individuals gave up their natural power to the State, the State in return was expected to protect and uphold the natural rights of that individual. Thus, the right of property may be justified on the grounds of mutual benefit. As Locke stated, ‘The reason why men enter into society is the preservation of their property’: Second Treatise on Civil Government, Prometheus Books, New York, 1986, p 222. There are, however, difficulties with the natural rights rationale for private property. The natural rights theorists justified private property on the grounds of a fictional exchange. Civil order is not necessarily defined by the existence of property and individuals do not necessarily ‘deserve’ to have their private property protected purely on the basis of an 37

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implied benefit. Natural rights and the social contract justify private property on the basis of constructed laws that are not naturally occurring. As Montesquieu noted, natural rights theorists assume that ‘all virtues and all vices depend on the establishment of laws made by men’: The Spirit of the Laws, Cambridge University Press, Cambridge, 1989, A Cohler, B Miller and H Stone (eds), pp 701–2.

Utilitarianism 1.17  Utilitarianism focuses upon the greatest good for humanity. In its application to private property, utilitarianists, following the idea that actions should be chosen according to whether they maximise expected utility, suggest that private property is justifiable because it promotes individual happiness. Thus, the inherent benefit underlying private property lay in the fact that it encouraged individual and social wellbeing. Hegel argued that a human being cannot live a proper life without coming to a full consciousness and appreciation of itself as a person sharing a society. This self-appreciation occurred through an interaction with the material world and the acquisition of rights to control and possess the material world is integral to an individual’s self-recognition and identity. The perspectives of utilitarianists have endured and it is accepted that private property is closely associated with individual happiness, dignity and self-realisation. However, utilitarianism does not fully embrace the social impact of private property and the need to ensure that individual benefit is not gained at the expense of broader social and community needs. See also G S Alexander, ‘The Social-Obligation Norm in American Property Law’ (2009) 94 Cornell Law Review 745; and E R Claeys, ‘Virtue and Rights in American Property Law’ (2009) 94 Cornell Law Review 889, where the authors discuss the moral core of property relationships and their connectedness to social worth. S R Foster and D Bonilla in ‘The Social Function of Property: A Comparative Perspective’ (2012) 80 Fordham Law Review  1003 at 1011 discuss the notion that the classic liberal conception of private ownership is regulated by social obligations. The authors state that ‘Property’s social function, and the owner’s obligation to provide certain benefits to society, work as an internal constraint on private property rights. As such, a society’s shared values and moral commitments exist, perhaps uncomfortably, alongside the owner’s right to exclude. The core of property then ideally reflects the plurality of values that we as a society believe property should serve, and it is up to the legal system to negotiate them in defining the contours of private property.’ See also G S Alexander, ‘The Complex Core of Property’ (2009) 90 Cornell Law Review 1063 at 1066; G S Alexander, ‘The Social Obligation Norm in American Property Law’ (2009) 94 Cornell Law Review 745.

Socialism perspectives 1.18  By the mid-nineteenth century, the industrial revolution had transformed England

and had commenced in France. Within this environment, a new ideology, broadly described as socialism, was emerging. Socialism explored the relationship between private property and broader economic and social justice concerns. The fundamental principle underpinning socialism is the notion that private property is an individualistic pursuit that does not provide greater benefit for the broader society at large. In his examination of private property, Proudhon concluded that ‘property is theft’ (What is Property? (1840). This edition was translated from the French by Benjamin R Tucker. The Dover edition, first published in 1970, is an unabridged and unaltered republication of the English translation originally published by Humboldt Publishing Company c. 1890) and essentially argued that justice could only exist where individuals experienced

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equality of conditions. He suggested that private ownership of natural resources should be extinguished and property should belong to those who laboured to create it. Karl Marx re-examined the capitalist system of production. He argued that its foundation is based in exploitation because all value comes from labour. Capitalists own the means of production and therefore control the workers. The wages received by the workers do not equate to the real value of the object produced and the capitalists receive surplus value from the workers, enabling them to accumulate profit and wealth. This, in turn, meant that the capitalists dominated society and accumulated property. Hence, private property is an institution that benefits the capitalist class and according to Marx, it is only where the means of production are owned collectively rather than exclusively by a dominant class, that the benefits could be maximised to the community as a whole. Hence, private property was regarded by Marx and Engels as an extension of a capitalist framework and, in the interests of social justice, an institution that should be abolished. The legal framework that upheld private property was perceived as an instrument of class oppression benefiting the ruling class through control of the proletariat. Private property was therefore described as ‘a system of coercion designed to protect bourgeois ownership of the means of production’: N Barry, An Introduction to Modern Political Theory, Macmillan, London, 1989, p 53.

Modernist: legal positivism 1.19  Positivism is a way of looking at the world from a ‘natural sciences’ perspective. It is

founded upon the idea that there is a pre-existing order or reality and postulates a way of thinking about what the law is rather than what the law ought to be if broader moral and policy issues had been taken into account. Jeremy Bentham, said to be the father of legal positivism, developed a theory known as ‘expository jurisprudence’, whereby he argued that the morals and rights behind laws were irrelevant. All that was required was that the laws be found and enforced because they represented the will of the existing political sovereign. John Austin further developed this theory, arguing that every law is a command and every command has a correlative duty. Positivism has become one of the dominant approaches to the examination of law since the eighteenth century. It was recently defined as ‘that which is formally enacted or made by human institutions of state as binding prescription within a particular society, in distinction from, for example, the law of god, the laws of nature or scientific law’: H McCoubrey, The Development of Naturalist Legal Theory, Routledge, London, 1987 at 452. Legal positivism accepts private property not as a naturally occurring right, but rather as a right conferred by a higher authority, whether that authority be a government or court. From a positivist perspective, private property rights exist because they have been created by the State. Positivists do not adopt a broader, normative inquiry as to whether private property is an acceptable institution. In the words of Austin: ‘The existence of law is one thing; its merit and demerit another. Whether it be or be not is one enquiry; whether it be or be not conformable to an assumed standard, is a different enquiry’: R Campbell (ed), Lectures on Jurisprudence, 4th ed, Thoemmes Press Reprint, Bristol, 2002, Vol 1, p 157. Positivism accepts that private property exists as an inherent part of our legal framework and while the concept of property may, at times, vary according to the dictates of governments and courts, the fundamental validity of the formal legal framework endures. As Hart stated: ‘So long as the laws which are valid by the system’s tests of validity are obeyed by the bulk of the population this surely is all the evidence we need in order to 39

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establish that a given legal system exists’: ‘Definition and Theory in Jurisprudence’ (1954) 70 LQR 37 at 114; see also Hart, ‘Are There Any Natural Rights?’ in Waldron J (ed), Theories of Rights, Oxford University Press, Oxford, 1995.

Contemporary perspectives 1.20  Contemporary analysis of private property has focused upon broader social,

economic, and environmental concerns connected to the enforcement of private property frameworks. Recognition and protection of private property has become an important and fundamental characteristic of a capitalist market economy. Demestz has argued that the emergence of new property rights takes place in response to ‘new benefit-cost possibilities as resource values change’. According to this thesis, property rights become valuable when the social framework in which they are recognised develops to such an extent that the benefit of ownership exceeds the cost of acquiring it. Further, individual holdings reduce the transaction cost of the negotiation process because it reduces the number of people who need to negotiate: H Demestz, ‘Towards a Theory of Property Rights’ (1967) 57 American Economic Review Papers and Procedures 347. See also T W Merrill, ‘The Demestz Thesis and the Evolution of Property Rights’ (2002) 31 Journal of Legal Studies 331. As the Peruvian economist, Hernando de Soto has argued, private property promotes economic growth, providing a range of benefits including increased fungibility, better documentation of property ownership, and consequently, higher availability of credit and loans, greater protection against exploitation, and an increased sense of economic independence and networking. Developing countries have been largely unable to achieve the benefits associated with private property because the absence of property rights means that people are forced to rely upon non-uniform, extra-legal customary rules with no record system and no recognition at law. De Soto there argued that giving formal title deeds to the land would give the poor the means of raising finance for investment. The economic importance of recognising property rights by means of formal deeds is that this increases certainty and thereby incentivises investments in the existing resources. Property that is not formally recognised by means of records and titles is left outside the financial market and this inhibits the ability of the holder to access capital. Property rights, de Soto argues, are ‘human rights’ and the promotion of individual economic benefit can, in turn, assist in the protection of fundamental human rights. De Soto states: Property rights are human rights. They protect an external sphere of freedom of human beings as such and of their free associations. A working property system is an indispensable vehicle of ethical, economic and political progress. Especially small businesses, women and fragile groups such as refugees can claim the protection of property rights as human rights: Realizing Property Rights, H de Soto and F Cheneval, Rüffer and Rub, Zurich, 2006, p 1.

Other commentators have argued that the increasingly abstract nature of the social compact has created an ownership regime whereby holders are progressively more estranged from social and community responsibilities. Within such a context, the unconditional nature of private property has undermined broader social, economic, and environmental goals. As noted by C B Macpherson in A Political Theory of Property from Democratic Theory: Essays in Retrieval, Clarendon Press, Oxford, 1973, pp 123–35: From the sixteenth and seventeenth centuries on, more and more of the land resources in settled countries was becoming private property, and private property was becoming an individual right unlimited in amount, unconditional on the performance of social functions and freely 40

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transferable, as it substantially remains to the present day. Modern private property is indeed subject to certain limits on the uses to which one can put it: the law commonly forbids using one’s land or building to create a nuisance, using any of one’s goods to endanger lives, and so on. But the modern right, in comparison with the feudal right which preceded it, may well be called an absolute right in two senses: it is a right to dispose of, or alienate, as well as to use; and it is a right which is not conditional on the owner’s performance of any social function.

A further concern lies in the issues associated with the implementation and enforcement of private property regimes within developing economies, which can be fraught with social and cultural difficulties. The attempt to introduce private property models within complex pluralist, third world states, requires careful reform. In ‘Evolution and Chaos in Property Rights Systems: The Third World Tragedy of Contested Access’ (2006) 115 Yale Law Journal 996 at 1002, D Fitzpatrick makes the following comments: Put in more economic terms, because Demestz and Coase focus on property rights as a mechanism for internalising externalities, they overlook the possibility that the allocation process will create its own externalities in the form of social conflict. This has two important implications for economic models of property rights. First, in circumstances of legal, normative, and institutional pluralism, property rights will not necessarily emerge when resource users calculate that the gains from internalisation outweigh the costs. In dynamic social environments, the costs of conflict may be exacerbated rather than internalised by the distributional consequences of emergent property rights. Second, the normative implication that Third World states should establish secure property rights is impractical when the process of establishing and securing those rights itself creates new forms of uncertainty and conflict. In this case, instead of simplistic exhortations to establish secure property rights, Third World states need detailed proposals for property rights reform that address the issues of law and norms …

In contemporary Western societies, property rights have evolved substantially. The shift from small organised groups to large, developed nation states has encouraged a simultaneous shift in the evolution of property rights. Today, different forms of property rights have emerged and continue to do so on the basis of social rather than natural engineering. In  Demestzian terms, property has become worthwhile because higher resource values have made property rights valuable and, with an expanding population, this trend will continue. This trend is largely facilitated through legislative intervention. The tendency of the State to generate new property interests via legislative articulation is increasing and this has created new opportunities for the social and economic assessment of property creation. There is also an increase in what G S Alexander has described as ‘governance property’; that is, ‘multiple’ ownership property that requires the implementation of both internal and external governance norms. See: G S Alexander, ‘Governance Property’ (2012) 160 University of Pennsylvania Law Review 1853 at 1856–58. If we conceive of property as a varying bundle of sticks rather than a pre-existing and fixed package, courts and legislatures may add or remove sticks to achieve a variety of social and economic goals. This is crucial for the survival of property because it acknowledges the centrality of property for social stability and civic virtue. It recognises that property provides a basis for imposing social obligations for the good of the community. Under this civic conception of property, the core purpose of property is not to satisfy individual preferences or to increase wealth, but rather to fulfil a normative vision of how society and its institutions should operate. For a further discussion on this see the interesting discussion by the following: A de Robilant, ‘Property: A Bundle of Sticks or a Tree?’ (2013) 66 Vanderbilt Law Review 869; J R Nash, ‘Property Frames’ (2009) 87 Washington University Law Review 449; ‘When Government Intrudes: Regulating Individual Behaviours that Harm the Environment’ K F Kuh, (2012) 61 Duke Law Journal 1111; L L Butler, ‘The Resilience of Property’ (2013) 55 Arizona Law Review 847. 41

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This brief overview highlights some of the different philosophies, rationalisations and theories underlying the institution of private property as it has evolved over time. These perspectives remind us that private property, whether a natural or positive right, and whether socially or economically justifiable, is necessarily a product of the prevailing legal, cultural and social attitudes.

1.21  Revision Questions 1. What is the definitive characteristic of private property? 2. David Lametti in ‘The Concept of Property: Relations Through Objects of Social Wealth’ (2003) 53 University of Toronto Law Journal 325 at 353 stated: In analytic terms, we know that objects of property are central to the private property relationship because it is the in rem character of property rights that serves to differentiate property rights from in personam rights. Moreover, we have seen that rights and duties in the property relationship change with respect to particular objects of wealth; thus, in order to understand the relationship between individuals in property regimes, it makes analytic sense to place the object itself at the core of this relationship. In this extract, is the author suggesting that the object of the property relationship is more important than the relationship itself? Why does it make ‘analytic sense’ to place the object at the core of the property relationship?

3. What are some of the rationales underlying the ‘private’ and ‘excludable’ nature of property and can they be sustained in contemporary society? 4. In what way may a contractual licence be likened to a property interest? 5. What is the relevance of equitable remedies to the enforcement of contractual licences and how do they align the contractual licence with a property interest? 6. What are some of the difficulties associated with a ‘positivist’ approach to the articulation of private property rights? 7. Demestz in his famous article, ‘Towards a Theory of Property Rights’ (1967) 57 American Economic Review Papers and Procedures 347, focuses upon a cost/benefit analysis of private property. What do you think he means? 8. In Yanner v Eaton (1999) 166 ALR 258, the High Court referred to Professor K Grey’s conclusions that ‘much of our false thinking about property stems from the residual perception that “property” is itself a thing or resource rather than a legally endorsed concentration of power over things and resources’. Discuss this comment and its relevance to the facts of that decision.

Property and the environment 1.22  The creation and enforcement of property can have a fundamental effect upon the natural world that surrounds us. The unrestrained use of natural resources is ecologically damaging and may dramatically impact upon our quality of life. In light of this, environmental planning regulation has become increasingly important, particularly in a world where anthropogenic climate change has resulted in a profound imperative to reduce greenhouse gas emissions. Over the past few decades, the attitude of the public 42

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towards environmental norms has altered dramatically. Greater attention has been given towards the protection of wetlands, wildlife habitat, coastal areas and historic structures, and to climate change mitigation policies. This, in turn, has generated a shift in attitude towards the property rights and obligations of landowners, and there is increasing focus upon the ethics and responsibilities associated with environmental protection and land preservation. Arguably, property rights and the ‘bundle of rights’ metaphor is maladaptive to the social and ecological dynamics of complex and evolving natural environments. It has been argued that the ‘object regarding and context-considering’ concept of property as a ‘web of interests’ rather than a bundle of rights metaphor is better equipped to respond to change within complex and interconnected ecological environments. The ‘web of property’ idea was raised by C  A  Arnold, ‘The Reconstitution of Property: Property as a Web of Interests’ (2002) 26 Harvard Environmental Law Review 281 at 356–60. It is important to understand the interconnection between property and nature so that property rights can be constructed in a manner that is consistent with emergent understanding about changing ecological systems. As outlined by K W Hirokawa, ‘Three Stories About Nature: Property, The Environment and Ecosystem Services’ (2011) 62 Mercer Law Review 541 at 542: Property is the process of dividing the world into bits that may be subjected to private control. As such, how we understand the world, its characteristics, and its processes is very important. If, for instance, we think of water as an infinite resource that serves growth needs, we might not be concerned with how that resource is acquired, used, or even wasted. On the other hand, if we believe that water is a scarce and essential resource, we may find that an allocation scheme bears the weight of accomplishing many social and economic objectives. Nature matters because our understanding of the world matters to the manner in which we construct rights to property. Of course, at some point, the converse also obtains: how we conceive of property influences what we enjoy, fear, and want in the world. A new understanding of nature may be resisted precisely because it undermines the persuasiveness of the way we protect possessions as property. Property and nature are codependent, but their connection is an indeterminate one. When we view both nature and property as social constructions, it becomes apparent that the terms ‘property,’ ‘environment,’ and the more recent description of nature based on ‘ecosystem services’ can often be used interchangeably. At least, it should not be surprising that these terms share some common ground, as they share the same referent(s). Yet advocates from different perspectives certainly do not agree on the meaning of these terms or the values that they invoke, and it is to these divergent perspectives that this Article is addressed. These terms, whether considered synonymous or divergent, reflect on the contingency of an inevitable and ongoing clash of values that results when we allow rights to vest in natural things.

1.23  Consider the following extracts that examines the relationship between private

property rights, environmental law, resource management and climate change. Grinlinton concludes that the unrestrained use of natural resources is both economically and ecologically damaging and that private property rights must be increasingly subjugated to public interest concerns for broader community and social benefit.

  Property Rights and the Environment  David Grinlinton (1996) 4 Australian Property Law Journal 41 Throughout the industrial revolution and well into the present century, western nations were intent on creating wealth and exploiting environmental resources, whether they be clean air or water, undisturbed scenery, forests, or minerals. A belief in utilitarianism was matched by a love of private property, for private property conferred not only social status, but certain safeguards 43

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against environmental abuse. So, during the past hundred years, jurists and legislators have tended to favour use over preservation, private property rights over common property rights, and the generation of wealth and productivity over amenity, largely because society as a whole wanted it that way.

The movement from private right to public interest A broader ‘land ethic’ began to emerge as it was recognised that the ‘free enterprise’ system had no immediate economic interest in disposing of the waste products, protecting ecological viability, or furthering social equity objectives. The unrestrained use of natural resources and cumulative degeneration of air and water ‘sinks’ was not only ecologically damaging, but also imposed long-term economic costs on social structures dependent upon a sustainable resource base. Such problems could not be left to individual remedy or belated legislative intervention in response to direct threats to an obvious economic or social interest. Environmentalism is not only compatible, it is essential to private property rights. … Access to, and the use of, common property resources has also become increasingly controlled by the state. In affirming the legitimacy of a regulation imposing a fee to control the taking of abalone from the sea, the High Court of Australia had this to say: The right of commercial exploitation of a public resource for personal profit has become a privilege confined to those who hold commercial licences. This privilege can be compared to a profit à prendre. In truth, however, it is an entitlement of a new kind created as part of a system for preserving a limited public natural resource in a society which is coming to recognise that, in so far as such resources are concerned, to fail to protect may destroy and to preserve the right of everyone to take what he or she will may eventually deprive that right of all content. This ascendancy of public control of natural resources at the expense of private property rights is, to some extent, a reflection of changing social attitudes and responses to the environment and diminishing resources, and a wider public perception of their finite nature. In practical terms; this decline has been manifested by abridgement of rights of use traditionally associated with ‘ownership’ of real property rather than as a result of a fundamental re-orientation of concepts of property ownership. Some writers have recognised the dynamic nature of private property rights in the development of natural resources: When any resource is in abundant supply, the laws relating to its allocation and use are likely to be simple; as the resource becomes scarce, society’s stake greatly increases, and the laws tend to become complex. Property concepts need not be identical for all objects. In the case of real property, however, we need a revised land ethic to guide our decisions in an uncertain future. Other writers have similarly recognised the peril of maintaining the primacy of private property rights in contemporary legal jurisprudence and have asserted the need for a re-orientation of fundamental concepts of such ownership and use. Lippmann saw no theoretical barrier to such a re-orientation of western legal thought: … rights of property … Are a creation of the laws of the state. And since the laws can be altered there are no absolute rights to property. There are legal rights to use and to enjoy and to dispose of property … The ultimate title [to land] does not lie in the owner. The title is in ‘mankind’. Similarly, Bryant argues the need to re-establish the social responsibility element in property ownership: In respect of land, we hold that there is very good reason for radical reappraisal and very particular reasons for holding to the view that property rights in land exist only so far as they are delegated to individuals by law, implicitly or explicitly. Such rights may 44

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endure to the extent that the individuals concerned are able and willing to exercise them according to the public interest, but ought to be withdrawn where they are not so willing or capable. It has even been advocated that individual land ownership per se is an outdated concept, and that land should be treated as a ‘common property resource’ in much the same way as air and water, but with ‘ownership’ vesting in rights of use rather than in an estate in the land itself. Indeed, such a fundamental change in legal concepts of common law property ownership may be a more accurate reflection of present reality with the restrictions on individual use of land by planning and environmental protection laws, and the progressive re-assertion of ownership of certain minerals and control of other property rights by the state. Arguments for reform aside, private property ownership continues to underpin western economic and social organisation, and is likely to do so for the foreseeable future. However, the justification for the traditional dominance of private property rights continues to be challenged as those rights become increasingly subjugated to the public interest.

  Climate Change and the Evolution of Property Rights  Holly Dorenus (2011) 1 UC Irvine Law Review 1091 Human activity has radically altered the global climate system over the last two hundred years. Greenhouse gases resulting from the combustion of fossil fuels have accumulated in the atmosphere at an accelerating rate; the atmospheric concentration of C02, the primary greenhouse gas, is now more than a third higher than it was before the industrial revolution. …The physical and biotic changes resulting from greenhouse gas accumulation will disrupt the expectations of property owners in a variety of ways, undermining the security of their investments and putting pressure on current definitions and distributions of property rights. Two examples, vulnerable coastal lands and freshwater, illustrate this phenomenon. Each is already the center of property rights disputes; global climate change will inevitably heighten those tensions…. Absolute sea level rise varies with local ocean temperatures, currents and winds, and other local variables. Sea level rise relative to land also varies locally depending upon whether the land is uplifting (from, for example, loss of the weight of glaciers as they melt) or subsiding (for example, as a result of groundwater withdrawals). Small island states and the coasts of Africa and Asia are especially vulnerable to sea level rise because their populations are heavily concentrated in coastal zones and they lack the financial resources to adapt. But sea level rise will also affect developed nations, including the United States. Roughly one-third of Americans live in counties immediately bordering the nation’s ocean coasts. Sea level rises can break barrier islands in pieces or cause them to move rapidly shoreward. It increases coastal erosion and damage from storm surges. Synergistically, warmer ocean waters are likely to increase the intensity of hurricanes and tropical storms, making them even more damaging. Homes, roads, rail lines, power lines, pipelines, and other built infrastructure are all at risk, as are coastal ecosystems. Higher atmospheric temperatures mean that a higher proportion of precipitation will fall as rain, rather than snow. Together, the shift from winter snow to rain and warmer spring temperatures will push peak flows and spring runoff earlier in the year. Such changes will be problematic for both water management and aquatic ecosystems. Climate change will also alter the total amount of precipitation. In general, the northern and eastern portions of the country are expected to get wetter, while the already arid Southwest gets drier. On a worldwide basis, scientists have high confidence that climate change will substantially alter hydrology: for every one degree Celsius increase in global mean temperature, we should expect five to 45

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ten percent changes in precipitation and streamflow in many areas. In addition to changing average precipitation levels, climate change is expected to increase precipitation variability. Both drought and flood will become more common. The examples of coastal lands and fresh waters illustrate the extent to which climate change is a legal as well as practical problem. It is a legal problem because law inhibits society’s ability to respond to the changes climate disruption brings. In each context, individuated property rights butt up against common rights that cannot be effectively privatized. In each, adapting to climate change will be more difficult, and will reach a different endpoint, if current property holders enjoy rigid rights which cannot be adjusted without consent or compensation. In each context, even without climate change, the extent of those individuated rights is already contested and property law, which strives for stability, struggles to cope with what are already dynamic systems. Climate change further emphasizes the dynamic nature of land and water, raises the economic and emotional stakes, and increases the likelihood of conflict. Coastal development affects both public and private interests. Coastal lands lie at the intersection of public and private lands; in most coastal states, the state owns lands below the mean high-water mark, or at least the public holds an easement to access those lands for purposes of navigation, fishing, and recreation.’ Private landowners who have developed coastal lands often want to armor their shoreline with seawalls and similar structures to halt erosion before … it threatens their structures. But such armoring can destroy the public beach seaward of the wall and block access to the remaining public beach. Armoring can also cause erosion on adjacent lands, which may be privately owned…. In the absence of armoring, the mean high water mark, vegetation, or whatever line of demarcation the states regard as separating public and private rights, can move both coastward and seaward as sand accumulates (accretes) and erodes away. When hurricanes erode the beach, that line can move landward to the extent that shorefront homes are suddenly located on the state’s dry sand, at which point the state may demand their removal. …The coasts have always been dynamic; shorelines have moved landward and seaward with storms and sediment deposits. In order to deal with that dynamism, the common law long ago developed doctrines to readjust property rights as the physical reality shifted. Although the reasoning behind the doctrines may have been lost or misconstrued over time and application of the rule has shifted over time, the principle is well established at common law that if the shore moves gradually (by erosion or accretion) the title boundary moves with it, but if it moves rapidly (by avulsion) title does not shift. The accretion/avulsion rules are dynamic in the sense that they allow property boundaries to change under certain circumstances according to a set of principles that are easy to state but more challenging to apply. There is considerable resistance within the judiciary, however, to another kind of shift: changes in the principles that govern property… . As it currently stands, the law that applies to coastal properties is hardly clear, but does stand in the way of efficient and effective response to the problem of rising seas. With respect to fresh water, property rights conflicts have focused on the balance between rights to divert water for use and obligations to leave water in streams to maintain aquatic ecosystems. Like the coastal lands disputes, the water conflicts have not coalesced around a common understanding of the relevant principles. The rush for surface waters has created another legacy problem. Once gained, appropriative water rights persist forever so long as water continues to be put to beneficial use. That means that early appropriators retain the most senior rights, even as societal goals and the relative value of their use change. Frozen in the past as it is, the allocation of water rights under prior appropriation fails to account for modern views of the value of environmental protection. As competition for limited waters has intensified and environmental protection obligations have become more stringent, conflicts over rights to divert at the cost of aquatic ecosystems have become more frequent and more intense. 46

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Like the law of coastal property rights, the law of water rights remains uncertain, in much the same way and for much the same reasons. At the coast and in western waters, public and private rights butt up against one another, sometimes overlap, and more and more often find themselves in tension. Identifying clear boundaries between the two and deciding which prevails in a conflict are tasks which have become more difficult over the last fifty years as notions of the nature of the public interests at stake have expanded to include environmental protection. Climate disruption makes changes in property rights more urgent, but not necessarily more likely. Crisis can lower political barriers to legal change; There are several reasons, however, not to wait for climate disruption to reach the point of crisis before thinking through, and beginning to make, needed changes to property rules. First, climate change is not the kind of immediate crisis that breaks political logjams. By the time the effects of climate disruption become sufficiently catastrophic to grab political attention, the world will be committed to far worse. Second, climate adaptation is not a rapid endeavor. It may require construction of new infrastructure or even movement of populations away from high-risk areas. Those kinds of steps cannot be taken overnight. Third, climate adaptation will require careful reflection and planning, yet the response to crisis is not always (or even often) rational, carefully considered, or well adapted to future conditions. In particular, a crisis affecting human health, or even human economic well-being, can override any concern Adapting to climate disruption in a way that protects not only human but also environmental interests will require revision of existing property rules. Coastal states will need to be able to discourage, and perhaps even to prohibit, new construction on lands vulnerable to sea level rise or needed for migration of coastal wetlands. Western states will need to be able to reduce water deliveries to low-value agricultural users, and to require that more water remain in streams to meet the needs of aquatic ecosystems. Evolution of property rights in response to climate change will have to occur rapidly, before the changing climate produces a crisis. That evolutionary process will be a difficult one, because it unsettles established property rights on which people have come to rely. Given the difficulty of the adaptation task, government at all levels needs to be part of the solution, rather than part of the problem.

Commentary 1.24  The conclusions of Grinlinton and Dorenus reinforce the importance of regulating

private property rights so that the effects of human behaviour on the environment can be more effectively mitigated and controlled. The interconnectedness between the ‘environment’ and property is examined to highlight the fact that laws protecting the environment are increasingly critical for the continued functionality and existence of property. As outlined by Grinlinton, ‘environmentalism is not only compatible, it is essential to property law’. Arguably, however, the entitlements that underpin private property are not equipped to address the emergent demands of environmentalism. As outlined by Dorenus, individual property rights confer entitlements that are often very difficult to adapt to the imperatives of climate change, particularly where property owners retain rigid rights that cannot be adjusted without consent or compensation. The difficulties with a bundle of rights framework in this context is something recognised by C A Arnold, ‘Legal Castles in the Sand: The Evolution of Property Law, Culture and Ecology in Coastal Lands’ (2011) 61 Syracuse Law Review 213 at 256: The bundle of rights concept, with its emphasis on abstract, commodifiable rights, promotes the alienation of people from the object of their rights and the environments in which those rights arise, including alienation from self, others, work, faith, and nature. Furthermore, it does not accurately reflect many different types of property relationships in society, in which 47

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people form non-legal, non-market, concrete connections to the things of our lives, emerging out of passions and emotions, the social, cultural, biological, religious, and psychological dimensions of group and family relationships, biophilic connections between people and natural environments, the politics of geography, human concepts and definition of place and space, and the like. In other words, real-world property practices do not fit neatly into each stick associated with a separate abstract legal right.

This issue was also discussed by A B Klass, ‘Property Rights on the New Frontier: Climate Change, Natural Resource Development and Renewable Energy’ (2011) 38 Ecology Law Quarterly 63, where the author argues that early natural resources law was based primarily upon the conferral of property rights in natural resources to private parties with the aim of encouraging economic development. The future will necessarily involve a shift away from this with greater reliance upon integrating resource access into state and local permitting and land use planning frameworks. As outlined by Eric Biber in ‘Law in the Anthropocene Epoch’ (2018) 106 Georgetown Law Journal 1, 46: The Anthropocene will create pressures for property systems to update in response to the increasingly rapid changes in human impairments to the global systems and the impacts of those impairments on human and natural systems. … The Anthropocene will drive greater regulation of the uses of private property and the level and nature of that regulation will change in an accelerating manner. Activities that property owners could take without legal regulation will now be subject to regulation, changing property rights. … As the consequences of human impairments of global resources affect societies, many of the adaptation responses might require restricting individual use of property rights, or even reallocating those property rights.

Non-Private Resources Resources outside of ownership: res communes 1.25  There are many resources that are capable of forming the subject matter of a

property relationship, and objects and resources are continually being ‘privatised’ within contemporary society. Nevertheless, it is arguable that some objects should remain outside the boundaries of ownership on the grounds that to propertise such objects would infringe basic moral and social principles. One of the core common law principles is that the public need to possess inviolable rights to natural resources which make them immune to privatisation. Resources coming within this category include access to beaches, the sea, parks, air and running water. The concept of a public trust over natural resources was first introduced into English law through the writings of Bracton in the thirteenth century. Bracton’s writings were founded upon early Roman principles, which made it clear that not all resources were amenable to private ownership. According to Roman law, res nullius indicated that the property belonged to nobody, res publicae that it was the property of the State, and res communes that it was a bountiful resource, which should therefore be common to all. Resources that are res nullius or res communes are things that could be owned but at a given moment are not owned by anyone. For example, a wild animal is a res nullius that, upon capture, could become subject to private ownership (res intra commercium). In the words of Chancellor Kent, these resources are ‘bestowed by Providence for the common benefit of man’. (Quoted by B Parke in Embrey v Owen (1851) 6 EX 353 at 372; 155 ER 579 at 587 quoting from J Kent, Commentaries on American Law, O Halstead, New York, 1828, Vol 3, Lecture 51 at 354.) See further, P Wiel, ‘Natural Communism: Air, Water, Oil, Sea and Seashore’ (1934) 47 Harvard Law Review 425.

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De Bracton declared the beaches to be res communes and therefore ‘common to all’ and ‘inalienable’: see H de Bracton, On the Laws and Customs of England, S Thorne (trans), Belknap Press, London, 1968, pp 39–40. Ownership of the shore up to the high tide mark vested in the Crown in the absence of a prior owner and the Crown bore the responsibility of looking after the res communes for the benefit and good of the general public. Similarly, the right to running water was regarded as res communes because traditionally it was difficult to control, being highly volatile in nature and also a fundamental life-giving resource. The common law approach to water ownership was outlined by J Gray in, ‘Legal Approaches to the Ownership, Management and Regulation of Water from Riparian Rights to Commodification’ (2006) Vol 1 No 2 Transforming Cultures ejournal : The common law of England found that water in flow was not the subject of property. The idea that something was not susceptible to the characterisation of property was not unfamiliar to English law. Other things had also escaped the proprietary classification. For example, at common law, there was no property in a wild animal. It was only when the captor of the animal was able to demonstrate possession of it that he or she could protect his or her right in the animal against the rest of the world. Put another way, it was only then that the captor had a proprietary right. Cases such as these often turned on the question of what acts demonstrated possession. … In keeping with these cases it would seem that the reason water in flow was found not to be the subject of property was that one of the key legal aspects of ownership, that is, possession, observed through an ability to control the object in question, could not be demonstrated. While moving water is transitory and unstable, the requisite ability to control it cannot readily be legally demonstrated. … Further it is perhaps the case that social policy and cultural reasons … Picked up on the view that one had to treat one’s neighbours fairly by sharing the resource with them. Water was, after all, necessary for the maintenance of life … It followed from this that there is no property interest, at common law, in the water of a free flowing river.

One of the difficulties with the concept of public ownership of natural resource interests lies in the potential for resource exploitation that may be generated by an absence of individual rights of excludability. Public ownership of natural resources can produce what has been classically described as a ‘tragedy of the commons’ scenario. According to Hardin, a tragedy of the commons arises in circumstances where uncontrolled personal rights exist in shared natural resources. In his article, ‘The Tragedy of the Commons’ (1968) Science  162, Hardin argued that resources upon which the community depends must be carefully regulated because without such regulation, individuals will not promote the public interest. When many people maximise their personal use of a shared natural resource, thereby exploiting and depleting it, a tragedy of the commons occurs. Hardin argued that controlled ownership of commons resources is a more effective approach to commons resources because it combats the overconsumption and collective degradation that can flow from an open access regime where unmitigated self-interest can take over. Hardin did not consider in any detail how private ownership regimes might themselves degrade common resources. English common law has, however, consistently sustained the concept of a public ownership over vital natural resources, such as water and air, such that these resources are vested in the State for the benefit of the public. Statutory regulation regulates public ownership decisions and mandates compliance with environmental assessment processes. For a discussion of the different elements of public resource ownership see: C Rose, ‘Custom, Commerce and Public Property’ (1986) 63 University of Chicago Law Review 711; A Sinden, ‘The Tragedy of the Commons and the Myth of Private Property Solution’ (2007) 78 University of Colorado Law Review 533, where the authors discuss the fact that privatisation has replaced government intervention as the 49

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solution to the grim logic of the tragedy of the commons and, in this vein, water markets, emission trading schemes, and privatisation are touted as the new panacea. It has also been argued that the tragedy of the commons does not adequately capture the gravity of harm, particularly in the age of the Anthropocene, caused by the mismanagement of common pool resources. Resources that are vital to human existence, such as the earth’s atmosphere and groundwater aquifers, are becoming so vital that private property rights need to be removed: see Alexander M Pearl, ‘The Tragedy of the Vital Commons’ (2015) 45 Environmental Law 1021 at 1060. Vital resources must be managed by public resource frameworks; however, these frameworks must adopt a broader approach to the concept of public interest: see S Hepburn, ‘Public Resource Ownership and Community Engagement in a Modern Energy Landscape’ (2017) 34 Pace Environmental Law Review 379, where the author argues that where public resource frameworks exist the State must ensure that all autonomous entitlements are managed in accordance with communitarian responsibilities.

Boundaries of Ownership: Resources Incapable of Ownership Rights to a spectacle 1.26  A resource or object may not be propertised because it has no tangible presence

and is not clearly identifiable. This is the case with a view or a spectacle. Australian courts have consistently held that a spectacle or a view is not a resource capable of being owned. There are a range of rationales that underpin this conclusion. The primary one, however, is that the parameters of a spectacle are unclear and ambiguous and to allow an owner the right to exclude the rest of the world from a spectacle or a view interferes with the scope of the property rights held by neighbouring landowners; such owners are unable to properly use and enjoy their own land because of the uncertainty concerning the scope of a view. The inability to draw up a precise boundary and clearly identify what is and what is not owned is one of the primary reasons why the courts have refused to propertise a view or  a spectacle. These concerns were discussed by the Australian High  Court in Victoria Park Racing and Recreation Grounds Company Ltd v Taylor (1937) 58 Cambridge Law Review 479 and reinforced by K Gray in ‘Property in Thin Air’ (1991) 52 Cambridge Law Review 252 at 268: The primordial principle which emerges from the majority judgments in Victoria Park Racing is that a resource can be propertised only if it is — to use another ugly but effective word ‘excludable’. A resource is ‘excludable’ only if it is feasible for a legal person to exercise regulatory control over the access of strangers to the various benefits inherent in the resource.

See also J P Blais, ‘Protection of Exclusive Television Events Held in Public Venues: An Overview of the Law in Australia and Canada’ (1992) 18 Melbourne University Law Review 503. 1.27  The decision in Victoria Park Racing and Recreation Grounds Company Ltd v Taylor is extracted below.

  Victoria Park Racing and Recreation Grounds Company Ltd v Taylor  (1937) 58 CLR 479 Facts: The plaintiff conducted races on a racecourse in Victoria Park. The defendant, Taylor, owned land near the racecourse. Taylor placed an elevated platform on his land so that he could view the races from his property. He then read the information from the notice boards on 50

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the course concerning starters, scratchings and winners etc. This information was then called through to the radio station 2UW who then broadcast this information. Victoria Park wanted to stop the broadcasting of this information because evidence was given that some people preferred to listen to the radio than attend the races. The plaintiff brought a case for nuisance on the basis that the broadcasting was an unlawful interference with the use and enjoyment of the Victoria Park racecourse. During the course of the judgment the High Court considered whether the plaintiff owned the spectacle that they created on their land. Latham CJ: … I am unable to see that any right of the plaintiff has been violated or any wrong done to him. Any person is entitled to look over the plaintiff’s fences and to see what goes on in the plaintiff’s land. If the plaintiff desires to prevent this, the plaintiff can erect a higher fence. Further, if the plaintiff desires to prevent its notice boards being seen by people from outside the enclosure, it can place them in such a position that they are not visible to such people. At sports grounds and other places of entertainment it is the lawful, natural and common practice to put up fences and other structures to prevent people who are not prepared to pay for admission from getting the benefit of the entertainment. In my opinion, the law cannot by an injunction in effect erect fences which the plaintiff is not prepared to provide. The defendant does no wrong to the plaintiff by looking at what takes place on the plaintiff’s land. Further, he does no wrong to the plaintiff by describing to other persons, to as wide an audience as he can obtain, what takes place on the plaintiff’s ground. The court has not been referred to any principle of law which prevents any man from describing anything which he sees anywhere if he does not make defamatory statements, infringe the law as to offensive language, break a contract, or wrongfully reveal confidential information. The defendants did not infringe the law in any of these respects. The plaintiff further contended that there was an unnatural user of land by the defendant Taylor and that all the defendants were liable for resulting damage to the plaintiff’s land or to the plaintiff’s business. In my opinion, this contention cannot be supported. ‘Prima facie, it is lawful to erect what one pleases on one’s own land’ (Rogers v Rajendro Dutt). It is not suggested that Taylor has broken any building regulation. If he had done so the remedy would be found under the relevant building regulations, and not in an action of the present kind. In truth, the plaintiff’s complaint would be the same in all material particulars if Taylor had a two-storey house from the upper storey of which Angles made his broadcast. In my opinion it would be impossible to contend that there was an unnatural user of the land and house because they were used for that purpose. If Taylor complies with any relevant provision under the Federal Post and Telegraph Act or the Wireless Telegraphy Act, he is entitled to have a telephone and to use his premises as an originating point for broadcasting. So also the Commonwealth Broadcasting Co is entitled to broadcast under the licence granted in pursuance of the Federal regulations. I am not prepared to assent to what I regard as the surprising argument that the use of land for broadcasting is an unnatural user of land within the principle of Rylands v Fletcher. Broadcasting of races could doubtless be prevented, either altogether or without the consent of the persons who undertake the trouble and expense of organising race meetings, by a regulation dealing with the conditions of broadcasting licences; but no such regulation has yet been made. In reality there is no particular connection between the use of the defendant Taylor’s land as land and the wrong which the plaintiff alleges that it suffers. The position in all material particulars would be exactly the same if the broadcasting were done from a motor car on a road from which the racecourse could be seen or by a man standing on high land of which he was not the owner or the occupier. Reference to Taylor’s land in the argument is introduced only for the purpose of relying upon an alleged unnatural user of that land. As I have already said, in my opinion, there is no such user. The claim under the head of nuisance has also been supported by an argument that the law recognises a right of privacy which has been infringed by the defendant. However desirable some limitation upon invasions of privacy might be, no authority was cited which shows that 51

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any general right of privacy exists. The contention is answered, in my opinion, by the case of Chandler v Thompson; see also Turner v Spoone: ‘With regard to the question of privacy, no  doubt the owner of a house would prefer that a neighbour should not have the right of looking into his windows or yard, but neither this court nor a court of law will interfere on the mere ground of invasion of privacy; and a party has a right even to open new windows, although he is thereby enabled to overlook his neighbour’s premises, and so interfering, perhaps, with his comfort’; see also Tapling v Jones. It has been argued that by the expenditure of money the plaintiff has created a spectacle and that it therefore has what is described as a quasi-property in the spectacle which the law will protect. The vagueness of this proposition is apparent upon its face. What it really means is that there is some principle (apart from contract or confidential relationship) which prevents people in some circumstances from opening their eyes and seeing something and then describing what they see. The court has not been referred to any authority in English law which supports the general contention that if a person chooses to organise an entertainment or to do anything else which other persons are able to see he has a right to obtain from a court an order that they shall not describe to anybody what they see. If the claim depends upon interference with a proprietary right it is difficult to see how it can be material to consider whether the interference is large or small — whether the description is communicated to many persons by broadcasting or by a newspaper report, or only to a few persons in conversation or correspondence. Further, as I have already said, the mere fact that damage results to a plaintiff from such a description cannot be relied upon as a cause of action. I find difficulty in attaching any precise meaning to the phrase ‘property in a spectacle.’ A ‘spectacle’ cannot be ‘owned’ in any ordinary sense of that word. Even if there were any legal principle which prevented one person from gaining an advantage for himself or causing damage to another by describing a spectacle produced by that other person, the rights of the latter person could be described as property only in a metaphorical sense. Any appropriateness in the metaphor would depend upon the existence of the legal principle. The principle cannot itself be based upon such a metaphor. Even if, on the other hand, a spectacle could be said to exist as a subject matter of property, it would still be necessary, in order to provide the plaintiff in this case with a remedy, to show that the description of such property is wrongful or that such description is wrongful when it is widely disseminated. No authority has been cited to support such a proposition. … I agree with the judgment of Nicholas J and with the reasons which he gave for it. In my opinion the appeal should be dismissed. Rich J: … The question to be solved is, ‘How far can one person restrain another from invading the privacy of land which he occupies, when such invasion does not involve actual entry on the land?’ (Professor Winfield, Law Quarterly Review, vol 47, p 24). The defendants contended that the law provides no remedy as their action did not fall within any classification of torts and that the plaintiff’s remedy lay either in self-defence, eg, raising the height of the fences round the course, or in an application to the legislature. It does not follow that because no precedent can be found a principle does not exist to support the plaintiff’s right. Nuisance covers so wide a field that no general definition of nuisance has been attempted but only a classification of the various kinds of nuisance. Courts have always refrained from fettering themselves by definitions. ‘Courts of equity constantly decline to lay down any rule, which shall limit their power and discretion as to the particular cases in which such injunctions shall be granted or withheld. And there is wisdom in this course; for it is impossible to foresee all the exigencies of society which may require their aid and assistance to protect rights, or redress wrongs. The jurisdiction of these courts, thus operating by way of special injunction, is manifestly indispensable for the purposes of social justice in a great variety of cases, and therefore should be fostered and upheld by a steady confidence’ (Story’s Equity Jurisprudence, 1st Eng ed (1884), sec 959 (b), 52

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p 625). ‘The common law has not proved powerless to attach new liabilities and create new duties when experience has proved that it is desirable. That this was so in the older days was due to the wide scope of the action upon the case. The action upon the case was elastic enough to provide a remedy for any injurious action causing damage … When relationships come before the courts which have not previously been the subject of judicial decision the court is unfettered in its power to grant or refuse a remedy for negligence. The action on the case for negligence has no limits set upon its territory, save by previous decisions upon such specific relationships as have come before the courts.’ (Salmond on Torts, 9th ed (1936) (Stallybrass), pp 18, 19; cf Pollock, Torts, 13th ed (1929), p 22). An action on the case in the nature of nuisance was one of the flexible remedies capable of adaptation to new circumstances falling within recognised principles. This case presents the peculiar features that by means of broadcasting — a thing novel both in fact and law — the knowledge obtained by overlooking the plaintiff’s racecourse from the defendants’ tower is turned to account in a manner which impairs the value of the plaintiff’s occupation of the land and diverts a legitimate source of profit from its business into the pockets of the defendants. It appears to me that the true issue is whether a non-natural use of a neighbour’s land made by him for the purpose of obtaining the means of appropriating in this way part of the profitable enjoyment of the plaintiff’s land to his own commercial ends — a thing made possible only by radio — falls within the reason of the principles which give rise to the action on the case in the nature of nuisance. There is no absolute standard as to what constitutes a nuisance in law. But all the surrounding circumstances must be taken into consideration in each case. As regards neighbouring properties their interdependence is important in arriving at a decision in a given case. An improper or non-natural use or a use in excess of a man’s right which curtails or impairs his neighbour’s legitimate enjoyment of his property is ‘tortious and hurtful’ and constitutes a nuisance. A man has no absolute right ‘within the ambit of his own land’ to act as he pleases. His right is qualified and such of his acts as invade his neighbour’s property are lawful only in so far as they are reasonable having regard to his own circumstances and those of his neighbour (Law Quarterly Review, vol 52, p 460; vol 53, p 3). The plaintiff’s case must, I am prepared to concede, rest on what is called nuisance. But it must not be overlooked that this means no more than that he must complain of some impairment of the rights flowing from occupation and ownership of land. One of the prime purposes of occupation of land is the pursuit of profitable enterprises for which the exclusion of others is necessary either totally or except upon conditions which may include payment. In the present case in virtue of its occupation and ownership the plaintiff carries on the business of admitting to the land for payment patrons of racing. There it entertains them by a spectacle, by a competition in the comparative merits of racehorses, and it attempts by all reasonable means to give to those whom it admits the exclusive right of witnessing the spectacle, the competition and of using the collated information in betting while that is possible on its various events. This use of its rights as occupier is usual, reasonable and profitable. So much no one can dispute. If it be true that an adjacent owner has an unqualified and absolute right to overlook an occupier whatever may be the enterprise he is carrying on and to make any profitable use to which what he sees can be put, whether in his capacity of adjacent owner or otherwise, then to that extent the right of the occupier carrying on the enterprise must be modified and treated in law as less extensive and ample than perhaps is usually understood. But can the adjacent owner by virtue of his occupation and ownership use his land in such an unusual way as the erection of a platform involves, bring mechanical appliances into connection with that use, ie, the microphone and land line to the studio, and then by combining regularity of observation with dissemination for gain of the information so obtained give the potential patrons a mental picture of the spectacle, an account of the competition between the horses and of the collated information needed for betting, for all of which they would otherwise have recourse to the racecourse and pay? To admit that the adjacent owner may overlook does not answer this question affirmatively. The Silver Fox Case shows that an adjoining owner may not 53

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fire a gun in the breeding season so as to interfere with his neighbour’s usual or normal use of his land. The besetting cases indicate that at common law the concert of others is a material factor. Eavesdropping suggests that at common law calculated overhearing differs from the casual sort. The steward of a court leet in charging the jury was wont to charge them: ‘You shall inquire of and present … (among other evil members and persons of ill behaviour) … the eavesdropper, ie, he that doth hearken under windows and the like, to heare and then tell newes to breed debate between neighbours … all these may be amerced, and be bound to the good behaviour by a justice of peace’ (Sheppard, The Court-Keepers’ Guide, (1649), pp 47–49; see also Blackstone, Commentaries, 4th ed, Bk 4, c 13, p 169). There can be no right to extend the normal use of his land by the adjoining owner indefinitely. He may within limits make fires, create smoke and use vibratory machinery. He may consume all the water he finds on his land, but he has no absolute right to dirty it. Defendants’ rights are related to plaintiffs’ rights and each owner’s rights may be limited by the rights of the other. Sic utere tuo is not the premise in a syllogism but does indicate the fact that damnum may spring from injuria even though the defendant can say: ‘I am an owner.’ All the nuisance cases, including in that category Rylands v Fletcher, are mere illustrations of a very general principle ‘that law grows and … Though the principles of law remain unchanged, yet (and it is one of the advantages of the common law) their application is to be changed with the changing circumstances of the times. Some persons may call this retrogression, I call it progression of human opinion’ (R v Ramsay and Foote). I adapt Lord Macmillan’s words and say: ‘The categories of nuisance are not closed’ (Donoghue v Stevenson). Nuisance is not trespass on the case and physical or material interference is not necessary. The ‘vibration’ cases and the ‘besetting and eavesdropping’ cases are certainly against such a contention. What appears to me to be the real point in this case is that the right of view or observation from adjacent land has never been held to be an absolute and complete right of property incident to the occupation of that land and exercisable at all hazards notwithstanding its destructive effect upon the enjoyment of the land overlooked. In the absence of any authority to the contrary I hold that there is a limit to this right of overlooking and that the limit must be found in an attempt to reconcile the right of free prospect from one piece of land with the right of profitable enjoyment of another. The unreported case of the Balham dentist mentioned by Professor Kenny in his Cases on the Law of Tort, 4th ed (1926), p 367, would, if correctly decided, be discreditable to English law. This is what Professor Winfield, in an article on ‘Privacy’, Law Quarterly Review, vol 47, at p 27, says: ‘A curious invasion of privacy, recorded by the late Professor Kenny, was a case of 1904 in which a family in Balham, by placing in their garden an arrangement of large mirrors, were enabled to observe all that passed in the study and operating room of a neighbouring dentist, who sought in vain for legal protection against the annoyance and indignity to which he was thus subjected. This is all that is given of the case, and, as there is no further reference, it  is worthless as an authority. Why should it not have been actionable as a nuisance? It was something very like watching and besetting the dentist’s house so as to compel him to do or not to do something which he was lawfully entitled not to do or to do; and this was held to be a common law nuisance in Lyons & Sons v Wilkins [1899] 1 Ch 255. Subsequent trade union legislation may have affected the decision in that case, but not the principle underlying it, which is that such conduct seriously interferes with the ordinary comfort of human existence and the ordinary enjoyment of the house beset. Indeed, the Balham family behaved worse than the defendants in Lyons’ Case [1899] 1 Ch 255. for there was some economic excuse for the acts of the trade union officials there, while none whatever existed in the Balham case.’ In 1904 the unneighbourly neighbours of Balham were forced to adopt an elaborate system of mirrors to vent their ill feeling. But it is easy to believe that half a century later they would be able to do all they desired by means of television. Indeed the prospects of television make our present decision a very important one, and I venture to think that the advance of that art may force the courts to recognise that protection against the complete exposure of the doings of the individual may be a right indispensable to the enjoyment of life. For these reasons 54

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I am of opinion that the plaintiff’s grievance, although of an unprecedented character, falls within the settled principles upon which the action for nuisance depends. Holding this opinion it is unnecessary for me to discuss the question of copyright raised in the case. I think that the appeal should be allowed. Dixon J: … The feature in which the plaintiff finds the wrong of nuisance is the impairment or deprivation of the advantages possessed by the plaintiff’s land as a racecourse by means of a non-natural and unusual use of the defendants’ land. This treatment of the case will not, I think, hold water. It may be conceded that interferences of a physical nature, as by fumes, smell and noise, are not the only means of committing a private nuisance. But the essence of the wrong is the detraction from the occupier’s enjoyment of the natural rights belonging to, or in the case of easements, of the acquired rights annexed to, the occupation of land. The law fixes those rights. Diversion of custom from a business carried on upon the land may be brought about by noise, fumes, obstruction of the frontage or any other interference with the enjoyment of recognised rights arising from the occupation of property and, if so, it forms a legitimate head of damage recoverable for the wrong; but it is not the wrong itself. The existence or the use of a microphone upon neighbouring land is, of course, no nuisance. If one, who could not see the spectacle, took upon himself to broadcast a fictitious account of the races he might conceivably render himself liable in a form of action in which his falsehood played a part, but he would commit no nuisance. It is the obtaining a view of the premises which is the foundation of the allegation. But English law is, rightly or wrongly, clear that the natural rights of an occupier do not include freedom from the view and inspection of neighbouring occupiers or of other persons who enable themselves to overlook the premises. An occupier of land is at liberty to exclude his neighbour’s view by any physical means he can adopt. But while it is no wrongful act on his part to block the prospect from adjacent land, it is no wrongful act on the part of any person on such land to avail himself of what prospect exists or can be obtained. Not only is it lawful on the part of those occupying premises in the vicinity to overlook the land from any natural vantage point, but artificial erections may be made which destroy the privacy existing under natural conditions. In Chandler v Thompson, Le Blanc J said that, although an action for opening a window to disturb the plaintiff’s privacy was to be read of in the books, he had never known such an action maintained, and when he was in the common pleas he had heard it laid down by Eyre LCJ that such an action did not lie and that the only remedy was to build on the adjoining land opposite to the offensive window. After that date there is, I think, no trace in the authorities of any doctrine to the contrary. In Johnson v Wyatt, Turner LJ said: ‘That the windows of the house may be overlooked, and its comparative privacy destroyed, and its value thus diminished by the proposed erection … are matters with which, as I apprehend, we have nothing to do,’ that is, they afforded no ground for an injunction. In In re Penny and the South Eastern Railway Co the Court of Queen’s Bench set aside an award of compensation to a landowner for injurious affection by the construction of a railway because in the compensation awarded there was included the depreciation of the land owing to its now being overlooked. Erle J said: ‘The comfort and value of the property may have been diminished but no action would have lain for the injury before the statutory authority was conferred on the company’. This principle formed one of the subsidiary reasons upon which the decision of the House of Lords was based in Tapling v Jones, Lord Chelmsford said:— ‘the  owner of a house has a right at all times … to open as many windows in his own house as he pleases. By the exercise of the right he may materially interfere with the comfort and enjoyment of his neighbour; but of this species of injury the law takes no cognizance. It leaves everyone to his self-defence against an annoyance of this description; and the only remedy in the power of the adjoining owner is to build on his own ground, and so to shut out the offensive windows’. When this principle is applied to the plaintiff’s case it means, I think, that the essential element upon which it depends is lacking. So far as freedom from view or inspection is a natural or acquired physical characteristic of the site, giving it value for the purpose of the 55

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business or pursuit which the plaintiff conducts, it is a characteristic which is not a legally protected interest. It is not a natural right for breach of which a legal remedy is given, either by an action in the nature of nuisance or otherwise. The fact is that the substance of the plaintiff’s complaint goes to interference, not with its enjoyment of the land, but with the profitable conduct of its business. If English law had followed the course of development that has recently taken place in the United States, the ‘broadcasting rights’ in respect of the races might have been protected as part of the quasi-property created by the enterprise, organisation and labour of the plaintiff in establishing and equipping a racecourse and doing all that is necessary to conduct race meetings. But courts of equity have not in British jurisdictions thrown the protection of an injunction around all the intangible elements of value, that is, value in exchange, which may flow from the exercise by an individual of his powers or resources whether in the organisation of a business or undertaking or the use of ingenuity, knowledge, skill or labour. This is sufficiently evidenced by the history of the law of copyright and by the fact that the exclusive right to invention, trade marks, designs, trade name and reputation are dealt with in English law as special heads of protected interests and not under a wide generalisation. In dissenting from a judgment of the Supreme Court of the United States by which the organised collection of news by a news service was held to give it in equity a quasi-property protected against appropriation by rival news agencies, Brandeis J gave reasons which substantially represent the English view and he supported his opinion by a citation of much English authority (International News Service v Associated Press). His judgment appears to me to contain an adequate answer both upon principle and authority to the suggestion that the defendants are misappropriating or abstracting something which the plaintiff has created and alone is entitled to turn to value. Briefly, the answer is that it is not because the individual has by his efforts put himself in a position to obtain value for what he can give that his right to give it becomes protected by law and so assumes the exclusiveness of property, but because the intangible or incorporeal right he claims falls within a recognised category to which legal or equitable protection attaches. Brandeis J cites with approval Sports and General Press Agency Ltd v Our Dogs Publishing Co Ltd, a decision of Horridge J (affirmed by the Court of Appeal), which he describes as follows — ‘The plaintiff, the assignee of the right to photograph the exhibits at a dog show, was refused an injunction against the defendant, who had also taken pictures of the show and was publishing them. The court said that, except in so far as the possession of the land occupied by the show enabled the proprietors to exclude people or permit them on condition that they agree not to take photographs (which condition was not imposed in that case), the proprietors had no exclusive right to photograph the show and could therefore grant no such right. And, it was further stated that, at any rate, no matter what conditions might be imposed upon those entering the grounds, if the defendant had been on top of a house or in some position where he could photograph the show without interfering with the physical property of the plaintiff, the plaintiff would have no right to stop him’. In my opinion, the right to exclude the defendants from broadcasting a description of the occurrences they can see upon the plaintiff’s land is not given by law. It is not an interest falling within any category which is protected at law or in equity. I have had the advantage of reading the judgment of Rich J, but I am unable to regard the considerations which are there set out as justifying what I consider amounts not simply to a new application of settled principle but to the introduction into the law of new doctrine. Apart from the matters with which I have dealt, the plaintiff claimed that the defendants or some of them had been guilty of infringement of copyright. Copyright in two forms of production was set up. One was the board affording information of the scratchings and places at the barrier. The other was the race book. It may at once be conceded that copyright subsisted in the latter. Perhaps from the facts a presumption arises that the plaintiff company is the owner of the copyright but, as corporations must enlist human agencies to compose literary, dramatic, musical and artistic works, it cannot found its title on authorship. No proof was offered that the 56

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author or authors was or were in the employment of the company under a contract of service and that the book was compiled or written in the course of such employment. (See sec 5 (2) of the British Copyright Act 1911, scheduled to the Commonwealth Act of 1912.) Perhaps these facts are to be presumed. But the reason for the absence of proof of ownership is that the book was not relied upon at the hearing of the suit in support of the claim for infringement of copyright. In my opinion, the plaintiff was right in not relying upon it. For to establish infringement it would be necessary to show that the broadcast included such a use of the contents of the book as to amount to a ‘performance’ of a substantial part of the ‘work’ which it constitutes. No doubt the defendant Angles made much use of the information contained in the race book to enable him to give an account of the proceedings upon the course. But it is not information that is protected in the case of literary works but the manner in which ideas and information are expressed or used. ‘Performance’ is defined to mean any acoustic representation of a work and any visual representation of any dramatic work, including such a representation made by means of any mechanical instrument. I do not think that any ‘acoustic representation’ of a substantial part of the race book was given through the microphone. The board contained a list of positions at the barrier which was, in effect, repeated, but I should not have thought that, if the list was the subject of copyright, to repeat the order of positions actually assigned to the horses amounted to an infringement. I am, however, quite unable to suppose that, when the names of the starters, their positions, jockeys and so on are exhibited before a race, doing so amounts to publishing a literary work which becomes the subject of copyright. No doubt the expression ‘literary work’ includes compilation. The definition section says so (sec 35 (1)). But some original result must be produced. This does not mean that new or inventive ideas must be contributed. The work need show no literary or other skill or judgment. But it must originate with the author and be more than a copy of other material. The material for the board consists in the actual allotment of places and other arrangements made by the plaintiff company’s officers in respect of the horses. To fit in on the notice board the names and figures which will display this information for a short time does not appear to me to make an original literary work. In my opinion the judgment of Nicholas J is right and the appeal should be dismissed. Evatt J: It is quite unnecessary to cite or discuss authorities which repeat or illustrate the wellknown principle that the plaintiff must affirmatively establish that the defendants have been guilty of a tort, and that the damage which they have caused to be inflicted upon the plaintiff may be damnum absque injuria. At the same time, it is practically conceded that, if a legal wrong has been committed, the case is one for the application of the remedy of injunction. The defendants have argued that the damage and loss of the plaintiff have been sustained by it rather in its character as racing entrepreneur than as occupier of land. But the plaintiff’s profitable conduct of its business cannot be dissociated from its occupation of the land, and damage to the plaintiff’s business is necessarily reflected by some diminution in the value of the land of the plaintiff. It has been said with accuracy that nuisance does not convey the idea of injury to the realty itself. It means rather an interference with some right incident to the ownership or possession of realty. The law of nuisance is an extension of the idea of trespass into the field that fringes property. It is associated with those rights of enjoyment which are, or may become, attached to realty. Ownership or rightful possession necessarily involves the right to the full and free enjoyment of the property occupied (Street, Foundations of Legal Liability (Tort), vol 1, p 211). The defendants have not been content with a mere denial that a tort has been committed. They have ventured upon general reasoning in defence of their conduct, and Mr Watt in his able argument said that the broadcasting company was a competitor of the plaintiff in the business of entertainment and was equally ‘entitled to be protected in the legitimate exercise of their trade.’ This phrase is taken from the well-known judgment of Bowen LJ in Mogul Steamship Co Ltd v McGregor, Gow & Co, a case which has occupied some prominence in the 57

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judgment of Nicholas J. In the Mogul Case, shipowners, in order to force a rival shipowner out of business, combined for that purpose, but employed no unlawful means. But, in the present case, what the broadcasting company does is, by means of broadcasting, to incorporate in its own entertainment, simultaneously with the plaintiff’s entertainment, precisely so much of the latter as an expert verbal representation can give, the plaintiff having to expend capital and labour in providing its entertainment, and the company contributing nothing and taking everything. I cannot imagine a case which is further removed from the facts of the Mogul Case or other cases where individuals or groups, being in the same field of commercial enterprise, choose to engage in fierce competition for custom by making special offers or concessions in return for promises to give exclusive custom. The implied basis of all such competition is that each competitor is providing goods or services to the customer which are entirely the result of its own efforts, and that there is no ‘appropriation’ or ‘borrowing’ of the goods or services of the other. In the Mogul Case, Bowen LJ gave some illustrations of the type of conduct which is not permissible as between trade rivals. It is a profound mistake to suppose that the list was intended to be exhaustive. The classical example of the setting up of a new school the competition of which causes loss and damage to an old school in the neighbourhood only illustrates the principle that mere trade competition does not give rise to liability for tort. The facts of the present case might be analogous to the illustration of the rival schools if it were shown that, by means of broadcasting, television and the like, those conducting the new school listened in to the lessons or lectures delivered at the old school, and, by reproducing them as near as may be, caused damage to those conducting the old school. The attempt of the defendants to justify their conduct by reference to the cases on trade competition breaks down. It is not enough for the plaintiff to destroy the argument that the defendants are only engaged in normal trade competition with the plaintiff. The plaintiff must establish his cause of action. But in analysing the validity of the plaintiff’s attempt to establish his cause of action, we must recognise certain fundamental principles recently summarised by the House of Lords in Donoghue v Stevenson. There, Lord Atkin said: I venture to say that in the branch of the law which deals with civil wrongs, dependent in England at any rate entirely upon the application by judges of general principles also formulated by judges, it is of particular importance to guard against the danger of stating propositions of law in wider terms than is necessary, lest essential factors be omitted in the wider survey and the inherent adaptability of English law be unduly restricted. For this reason it is very necessary in considering reported cases in the law of torts that the actual decision alone should carry authority, proper weight, of course, being given to the dicta of the judges. In the same case, Lord Macmillan said in particular reference to the tort of negligence:— ‘The grounds of action may be as various and manifold as human errancy; and the conception of legal responsibility may develop in adaptation to altering social conditions and standards. The criterion of judgment must adjust and adapt itself to the changing circumstances of life. The categories of negligence are never closed’. Here the plaintiff contends that the defendants are guilty of the tort of nuisance. It cannot point at once to a decisive precedent in its favour, but the statements of general principle in Donoghue v Stevenson are equally applicable to the tort of nuisance. A definition of the tort of nuisance was attempted by Sir Pollock, who said:— Private nuisance is the using or authorising the use of one’s property, or of anything under one’s control, so as to injuriously affect an owner or occupier of property — (a) by diminishing the value of that property; (b) by continuously interfering with his power of control or enjoyment of that property; (c) by causing material disturbance or annoyance to him in his use or occupation of that property. What amounts to material disturbance or annoyance is a question of fact to be decided with regard to the character of the 58

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neighbourhood, the ordinary habits of life and reasonable expectations of persons there dwelling, and other relevant circumstances (Indian Civil Wrongs Bill, c VII, sec 55). At an earlier date, Pollock CB had indicated the danger of too rigid a definition of nuisance. He said:— ‘I do not think that the nuisance for which an action will lie is capable of any legal definition which will be applicable to all cases and useful in deciding them. The question so entirely depends on the surrounding circumstances — the place where, the time when, the alleged nuisance, what, the mode of committing it, how, and the duration of it, whether temporary or permanent’ (Bamford v Turnley). In the present case, the plaintiff relies upon all the surrounding circumstances. Its use and occupation of land is interfered with, its business profits are lessened, and the value of the land is diminished or jeopardised by the conduct of the defendants. The defendants’ operations are conducted to the plaintiff’s detriment, not casually but systematically, not temporarily but indefinitely; they use a suburban bungalow in an unreasonable and grotesque manner, and do so in the course of a gainful pursuit which strikes at the plaintiff’s profitable use of its land, precisely at the point where the profit must be earned, viz, the entrance gates. Many analogies to the defendants’ operations have been suggested, but few of them are applicable. The newspaper which is published a considerable time after a race has been run competes only with other newspapers, and can have little or no effect upon the profitable employment of the plaintiff’s land. A photographer overlooking the course and subsequently publishing a photograph in a newspaper or elsewhere does not injure the plaintiff. Individuals who observe the racing from their own homes or those of their friends could not interfere with the plaintiff’s beneficial use of its course. On the other hand, the defendants’ operations are fairly comparable with those who, by the employment of moving picture films, television and broadcasting would convey to the public generally (i) from a point of vantage specially constructed; (ii) simultaneously with the actual running of the races, (iii) visual, verbal or audible representations of each and every portion of the races. If such a plan of campaign were pursued, it would result in what has been proved here, viz, actual pecuniary loss to the occupier of the racecourse and a depreciation in the value of his land, at least so long as the conduct is continued. In principle, such a plan may be regarded as equivalent to the erection by a landowner of a special stand outside a cricket ground for the sole purpose of enabling the public to witness the cricket match at an admission price which is lower than that charged to the public bodies who own the ground, and, at great expense, organise the game. In concluding that, in such cases, no actionable nuisance would be created, the defendants insist that the law of England does not recognise any general right of privacy. That is true, but it carries the defendants no further, because it is not merely an interference with privacy which is here relied upon, and it is not the law that every interference with privacy must be lawful. The defendants also say that the law of England does not forbid one person to overlook the property of another. That also is true in the sense that the fact that one individual possesses the means of watching, and sometimes watches what goes on on his neighbour’s land, does not make the former’s action unlawful. But it is equally erroneous to assume that under no circumstances can systematic watching amount to a civil wrong, for an analysis of the cases of J Lyons & Sons v Wilkins and Ward Locke & Co (Ltd) v Operative Printers’ Assistants’ Society indicates that, under some circumstances, the common law regards ‘watching and besetting’ as a private nuisance, although no trespass to land has been committed. The defendants relied strongly upon the decision in Sports and General Press Agency Ltd v Our Dogs Publishing Co Ltd. That case decides that, if an exhibition of animals is conducted at a sports ground, the occupier cannot, by purporting to confer upon A the exclusive right of taking photographs, prevent B, who is also a spectator lawfully in attendance, from taking photographs. The court considered that the occupier should have protected himself by regulating the terms of the contract of admission and so preventing the use of photographs by unauthorised persons. In one judgment there was an obiter dictum as to the right of taking a 59

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photograph from outside the ground. But the case does not anywhere suggest that there exists an absolute and unqualified right to photograph from outside a ground the spectacle which is being conducted inside. In the United States, in the case of International News Service v Associated Press, Brandeis J regarded the Our Dogs Case as illustrating a principle that ‘news’ is not property in the strict sense, and that a person who creates an event or spectacle does not thereby entitle himself to the exclusive right of first publishing the ‘news’ or photograph of the event or spectacle. But it is an extreme application of the English cases to say that because some overlooking is permissible, all overlooking is necessarily lawful. In my opinion, the decision in the International News Service Case evidences an appreciation of the function of law under modern conditions, and I believe that the judgments of the majority and of Holmes J commend themselves as expositions of principles which are not alien to English law. If I may borrow some phrases from the majority decision, I would say that in the present case it is indisputable that the defendant broadcasting company has ‘endeavoured to reap where it has not sown,’ and that it has enabled all its listeners to appropriate to themselves ‘the harvest of those who have sown.’ Here, too, the interference with the plaintiff’s profitable use of its land takes place ‘precisely at the point where the profit is to be reaped, in order to divert a material portion of the profit from those who have earned it to those who have not’. For here, not only does the broadcasting company make its own business profits from its broadcasts of the plaintiff’s races; it does so, in part at least, by conveying to its patrons and listeners the benefit of being present at the racecourse without payment. Indeed, its expert announcer seems to be incapable of remembering the fact that he is not on the plaintiff’s course nor broadcasting with its permission, for, over and over again, he suggests that his broadcast is coming from within the course. The fact that here, as in the International News Service Case, the conduct of the defendants cannot be regarded as honest should not be overlooked if the statement of Lord Esher is still true that ‘any proposition the result of which would be to show that the common law of England is wholly unreasonable and unjust, cannot be part of the common law of England’ (quoted in Donoghue v Stevenson). The fact that there is no previous English decision which is comparable to the present does not tell against the plaintiff because not only is simultaneous broadcasting or television quite new, but, so far as I know, no one has, as yet, constructed high grandstands outside recognised sports grounds for the purpose of viewing the sports and of enriching themselves at the expense of the occupier. In the United States, no such practice has ever been commenced. The only case which can be regarded as comparable is Detroit Baseball Club v Deppert, decided by the Supreme Court of Michigan. There, the defendant resided upon his own land, which was situated near the recreation ground of the plaintiff company, which conducted baseball games for profit as a member of the National Baseball League. A high fence enclosed the ground, but the defendant, who had a barn on his land, erected a stand on the roof of his barn solely for the accommodation of persons who wished to view the games played on the plaintiff’s ground. The  defendant charged less for the accommodation provided by him than was ordinarily charged for admission to the recreation ground. Apparently the plaintiff failed to establish the fact that persons who visited the defendant’s stand would otherwise have paid the admission fee to the plaintiff’s ground. The court refused an injunction, but upon the ground that the plaintiff’s remedy at law was ‘entirely adequate.’ Campbell CJ dissented, stating that ‘the law has never defined nuisance in such a way as to be exhaustive, for the plain reason that perverse ingenuity can readily devise new means of harm’. He added:— All the rules of law made to redress offensive invasions of private property and rights, short of trespass, go upon the theory that conduct tending to great provocation, unless 60

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checked by civil remedies, may lead to disturbance. The present case does not differ in principle from any other where exhibitions are profitable and the profits are secured to the owners. This nuisance is one which is chiefly obnoxious from its repetition and continuance, and I think should be restrained by injunction. So far as it goes, the decision supports the claim of the present plaintiff, for the reasoning of the majority of the court was that the plaintiff possessed an adequate remedy at law for the private nuisance of which he complained. In the present case, damage to the plaintiff has been established and found. I can see no difference in principle between the present defendants’ broadcasting of the races observed from their specially erected observation tower and the special erection outside the plaintiff’s racecourse of a grandstand solely for the purpose of charging the public for the right to overlook the plaintiff’s entertainment. In each case, the price charged, or the absence of any charge, may be shown to have caused or induced persons who would otherwise attend the ground to stay away, but at the same time enabled them to observe or listen to a running description of the race. It should be appreciated that the plaintiff does not question the general principle that it is a legitimate use of property to erect and extend homes for the purpose of obtaining or improving favourable prospects or ‘views.’ A number of cases bearing upon such question have been collected and discussed by Professor Winfield in a learned article on ‘Privacy,’ published in the Law Quarterly Review, vol 47, p 23. The Balham Case there discussed illustrates not only what Paley called the ‘competition of opposite analogies,’ but also, in my opinion, how the competition might fairly be resolved. It appeared that, by an arrangement of large mirrors, ‘neighbours’ succeeded in observing all that went on in the surgery of a nearby dentist. Professor Winfield rightly asks: ‘Why should it not have been actionable as a nuisance?’ In my opinion, such conduct certainly amounted to a private nuisance and should have been restrained by injunction, although the sole object of the ‘peeping Toms’ of Balham was to satisfy their own degraded curiosity and not to interfere with the dentist’s liberty of action. In truth, no normally sensitive human being could have pursued his profession or business under so intolerable an espionage, and the result would have been to render the business premises practically uninhabitable. The motive of the wrongdoers at Balham was to satisfy their curiously perverted instincts. But let us suppose that, by such devices as broadcasting and television, the operating theatre of a private hospital was made inspectable, so that a room outside the hospital could be hired in order that the public might view the operations on payment of a fee. It would not be any the less a nuisance because in such a case the interference with the normal rights of using and enjoying property was accentuated and aggravated by the wrongdoers making a profit out of their exhibition. Let it be also supposed that medical students, who would otherwise pay a fee to the hospital in order to witness the operations, stayed away because they were able to see them performed elsewhere but simultaneously for a smaller fee, the result being that damage is sustained by the hospital. My opinion is that an action would lie, not only in the Balham Case but in the instances I have suggested and that a court of equity would grant the additional remedy of an injunction. If this conclusion is right, the following propositions may be suggested:— (a) Although there is no general right of privacy recognised by the common law, neither is there an absolute and unrestricted right to spy on or to overlook the property of another person. (b) A person who creates or uses devices for the purpose of enabling the public generally to overlook or spy upon the premises of another person will generally become liable to an action of nuisance, providing appreciable damage, discomfort or annoyance is caused. (c) As in all cases of private nuisance, all the surrounding circumstances will require examination. (d) The fact that in such cases the defendant’s conduct is openly pursued, or that his motive is merely that of profit making, or that he makes no direct charge for the privilege of overlooking or spying will provide no answer to an action. 61

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The above-suggested statement of principle may require either extension or qualification, but in essence I think that it is in accordance with the principles of the common law of England, the ‘inherent adaptability’ of which is as essential to-day as ever it was, having regard to our ‘altering social conditions and standards.’ These phrases of Lord Atkin and Lord Macmillan, though applied to another branch of the common law, are equally applicable to the problem which has arisen in this case. I can see nothing in the statement of principle to which reasonable objection would be taken in practice. Indeed, no one who recognises the existence of any duties towards his neighbour could ever think of acting in contravention of the principles. Only an insufficiently disciplined desire for business profit and an almost reckless disregard, not so much of the legal rights as of the ordinary decencies and conventions which must be observed as between neighbours, could have induced the broadcasting company to cause the loss to the plaintiff which has been proved in this case. The argument that the plaintiff might have protected itself from intrusion and loss by increasing the height of its boundary fence comes with ill grace from the defendants, whose reply would probably have been to disfigure further the Taylor bungalow by increasing the height of the broadcasting tower. In such a way, reprisals might go on indefinitely. However, in the circumstances proved, I am of opinion that the plaintiff should not be remitted either to self-help or to legislative aid, but that he is entitled to redress from the law by the application of the principles which I have suggested are embodied in the common law. Thus the plaintiff is entitled to maintain an action for damages for private nuisance, and, if so, it is indisputable that he is also entitled to an injunction against all three defendants. In my opinion the appeal should be allowed. [McTiernan J dismissed the appeal.]

Commentary 1.28  The decision of the Australian High Court in Victoria Park Racing makes it clear

that English common law does not accept that a spectacle or view is capable of being owned. An owner is at liberty to exclude his or her neighbours’ view by any physical means legally possible; however, in the absence of any such impediment, there is no legal restriction that an owner can place upon the right of a neighbouring owner to view activities being conducted on adjoining land. Overlooking land from a natural vantage point is an ordinary aspect of ownership and it is not possible to exclude such a perspective by claiming exclusive ownership over it. This does not mean that tort actions will not be available. Rich J argued (and Evatt J agreed) that on the facts, the unusual character of the broadcasting went beyond mere observance and constituted an act that came within the application of nuisance. On the issue of property, however, the court was unanimous in its acceptance that the right of a neighbour to look over the fence and watch an unimpeded spectacle was well established. The creator of the spectacle could not claim ownership over what Latham CJ described as ‘metaphorical’ ownership. In this respect, K Gray, in ‘Property in Thin Air’ (1991) 52 Cambridge Law Review 252 at 268 noted that the majority judgment in Victoria Park focused upon the importance of keeping non-excludable resources beyond the domain of private property and within the domain of the commons. In this respect, Gray suggested that non-excludable resources could potentially arise in three different contexts: physical, legal and moral. A resource is physically non-excludable where the boundaries cannot be determined. A resource is legally non-excludable where this has arisen as a consequence of a legal act and a resource is morally non-excludable where a resource is so central or intrinsic to constructive human coexistence that it would be ‘severely anti-social’ that these resources be removed from the commons. See also G Taylor, ‘Why there is No Common Law Right of Privacy’ (2000) 26(2) Monash University Law Review 235.

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Resources incapable of ownership: moral boundaries 1.29  Some resources may not be propertised because to do so would be contrary to

fundamental moral assumptions and human freedoms. In setting a moral boundary on ownership, the courts recognise that property interests may be effectively ‘overridden’ by the greater social good. The meaning of social good in this context is broad but basically connects to fundamental human rights that are associated with decent, moral living. Determining the nature and scope of these concepts is, however, deceptive as they are constantly changing and this, in itself, illustrates the core ambiguity of the common law framework. As outlined by K Gray and S Gray in ‘The Idea of Property in Land’ in S Bright and J Dewar (eds) Land Law: Themes and Perspectives, Oxford University Press, Oxford, 1998, p 18, there is a: … deep structural indeterminacy, in that [t]he common law world has never really resolved whether property in land is to be understood in terms of empirical facts, artificially defined rights, or duty-laden allocations of social utility … In short, the idea of property in land oscillates ambivalently between the behavioural, the conceptual, and the obligational, between competing models of property as a fact, property as a right, and property as a responsibility …

See also A Grear, ‘A Tale of the Land, the Insider, the Outsider and Human Rights (An  Exploration of Some Problems and Possibilities in the Relationship between the English Common Law Property Concept, Human Rights Law and Discourses on Exclusion and Inclusion)’ (2003) 23 Legal Studies 33. Ownership of human life is generally regarded as impossible because of the unacceptable moral and ethical implications such rights may generate. To allow a person to assert a proprietary title or interest over another human life would be to justify the exploitation of that person and the denial of their basic human rights to life and liberty and this is an affront to human dignity. Margaret Radin has argued that certain things ought to be fully or partially inalienable because to allow some things to be dealt with in a market indicates a connection between personhood and  money, which reduces human flourishing: see Margaret Jane Radin, ‘Market Inalienability’ (1987) 100 Harvard law Review 1849. The existence of inalienable property and the fact that markets can arise in things such as human embryos and body parts indicates that there is a difference between a property and commodities that are assigned a value. Arguably, laws that restrict commodification, with appropriate enforcement mechanisms, may be more effective in preventing inappropriate commodification than a blanket refusal to treat something as property because of commodification concerns: see: L M Bennett, ‘The Applicability of Property Law in New Contexts: From Cells to Cyberspace’ (2008) 30 Sydney Law Review 639. Ownership over a body, however, may be acceptable in some circumstances. In Doodeward v Spence [1908] 6 CLR 406, the Australian High Court held that a preserved, two-headed stillborn baby could be regarded as the property of the doctor who had preserved it. The court approved the general principle that a body cannot be owned, yet held that this rule may be set aside where a person has applied work or skill to the body. This entitlement is, however, subject to the right over the body held by an administrator for the purpose of burial or cremation. Generally speaking, therefore, it is not legally possible to own another life. However, each individual does have ownership in their individual body parts. Where the part is regenerative — for example, blood, urine, sperm etc — it may be transferred to a third party who can then claim property over it. Alternatively, where the part is non-regenerative, for example, a vital organ, it is generally the case that a third party cannot claim ownership 63

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over it unless the owner has donated it during their life or after death. In Roblin v The Public Trustee for the Australian Capital Territory, [2015] ACTSC 100, Mossop M held that cryogenically stored semen obtained from a person at his request and prior to his death did constitute personal property and therefore formed a part of his intestacy estate for the purposes of the Administration and Probate Act 1929 (ACT). His Honour made the following comments at [23]–[28]: It is proper to hold that the human tissue is property. In reaching that conclusion I am mindful of what was said by Griffith CJ about the need to apply the principles of law in line with reason and good sense. In the wider sense, it defies reason to not regard tissue samples as property. Such samples have a real physical presence. They exist and will continue to exist until some step is taken to effect destruction. There is no purpose to be served in ignoring physical reality. To deny that the tissue samples are property, in contrast to the paraffin in which the samples are kept or the jar in which both the paraffin and the samples are stored, would be in my view to create a legal fiction. There is no rational or logical justification for such a result … The mere fact that the semen was formerly part of a human body is not sufficient to deny that it is property. The fact that the sperm constitutes human gametes is not sufficient at common law to take it out of the conception of property. There has been no legislative intervention that requires it to be treated differently to other material that might constitute property because it was formerly part of a human body, or because of its particular status as being human gametes.’

In James v Seltsam Pty Ltd [2017] VSC 506, Zammit J concluded that an explanted lung was property within the meaning of rule 37.01 of the Supreme Court (General Civil Procedure) Rules 2015 (Vic). Her Honour stated that the ruling was confined to the context in which it was made, noting that Griffith CJ in Doodeward foreshadowed that whether something is property may vary between different legal settings. In Re Cresswell [2018] QSC 142, Brown J concluded that sperm that had been lawfully removed from a deceased person was capable of constituting property, but that the common law did not recognise sperm as property until it is separated from the human body, and this separation could only occur where the person was deceased, pursuant to legislative provision. His Honour noted at [144] that ‘the principle that a human body cannot be the object of a property right does not apply in relation to tissue or body parts once they are removed from a human body. Things which are removed and separated from the living human body, such as human tissue, can sometimes be the object of property rights.’ See also the discussion by Justice James Edelman ‘Property Rights to Our Bodies and Their Products’ (2015) University of Western Australia Law Review 39(2), 47. There are, of course, significant regulations attached to donor transplants that seek to prevent unlawful trading in human organs. Sometimes, however, human parts or tissues may be needed for medical research. The issue of whether human tissue removed from the body of a patient and then used for successful medical research could be reclaimed by the owner was considered in the landmark Californian decision of Moore v Regents of University of California (51 University of California 3d 120; 271 Californian Reporter 146; 793 P.2d 479)(1990). In that case, a medical research group removed a patient’s spleen, blood, cells, skin and semen during the course of treatment for leukaemia without his knowledge or consent and, from it, developed a product with enormous therapeutic value that was extremely lucrative. The Californian Supreme Court concluded that the patient could not claim these tissues back because societal policy arguments favouring the proper development of effective medical research and treatment outweighed the importance of individual property claims. 64

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The court concluded that ‘the extension of personal property rights to interfere with proper and effective development of medical research would be socially unacceptable and unjustified’. The Moore decision has been the subject of much academic debate. Consider the comments from D Mortimer, ‘Proprietary Rights in Body Parts: The Relevance of Moore’s Case in Australia’ (1993) 19 Monash University Law Review 217 at 226–7 on the conclusions of the Supreme Court in Moore v Regents of University of California: The theme which runs through each of the majority’s concern is that the law should protect and enhance the development of medical research because of its social utility, rather than pursuing a course which prefers the protection of individual rights. Such individual rights are, the majority argued, well enough protected by the doctrines of fiduciary duty and informed consent … No evidence was provided to support the majority’s clear assumption that less human tissue would be available if that human tissue were treated as the property of the patient. In reality all that the granting of such property rights would involve, in the case of removing and using human tissue, is the obtaining of appropriate consent from the patient. It is a jaundiced view of patients faced with such requests to suggest that significant numbers of them would withhold consent out of a meanness of spirit. Nor is there any evidence to suggest that even if there were a significant reduction in the amount of human tissue available, this would adversely affect the supplies for medical research.

From a statutory perspective, the ownership of human tissue is now regulated in some Australian states. For example, in Victoria, ss 38–39 of the Human Tissue Act 1982 prohibits the selling and buying of human tissue and making it unlikely that Australian courts would recognise the claim for conversion brought about by a patient in similar circumstances to those in the Moore’s decision. See also M Massar ‘Restricting Human Embryonic Stem Cell Research: Creating Life or Destroying Freedom’ (2008) 10 Scholar 43 where the author notes that the monetary value of bodily tissue has dramatically increased during the current biotech era. See also F J Morales, ‘The Property Matrix: An Analytical Tool to Answer the Question: Is This Property?’ (2013) 161 University of Pennsylvania Law Review 1125; Persons, Parts and Property: How We Should Regulate Human Tissue in the 21st Century, I Goold, K Greasley, J Herring and L Skene (eds), Hart Publishing, UK, 2016.

Resources incapable of ownership: common heritage of humanity 1.30  The common heritage principle, or as it is sometimes referred to, the ‘global

commons’ is sourced in the res communes principle, which originated in Roman law. In a modern context, res communes resources are distinguished by two primary characteristics: they may not be appropriated and the use of them belongs equally to all the people. See B Larschan and B C Brennan, ‘The Common Heritage of Mankind Principle in International Law’ (1983) 21 Columbia Journal of Transnational Law 305; W A Qureshi, ‘Protecting the Common Heritage of Mankind Beyond National Jurisdiction’ (2019) 36 Arizona Journal of International and Comparative Law 79. These authors discuss the fact that while the common heritage principle recommends that resources of the common area be shared equitably among States, the principle provides no quantitative framework for determining or distributing the equitable share of a resource and this has created uncertainty). This means, for example, that natural resources in the high seas may not be owned or apportioned otherwise than in accordance with rules promoting the common interest of all nations. The high seas, which lie beyond state maritime boundaries, are regarded as international highways that are incapable of being appropriated or subjected to exclusive state sovereignty. See Northern Territory v Arnhem Land Aboriginal Trust (2008) 236 CLR 65

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24 esp at [21] per Gleeson CJ, Gummow, Hayne, and Crennan JJ. Advances in technology have made deep sea mining possible. Any request to mine resources within the deep sea must be evaluated by the International Sea-bed Authority, which was set up under the United Nations Law of the Sea Convention, 1983, Part XI, Section 4. Australian ratified the Convention in 1994 as have many other developed countries. Resources and minerals located within this area may only be alienated in accordance with the rules set out under Part XI of the Convention. The International Sea-Bed Authority has also established a further body known as the ‘Enterprise’ to control mining activities in this area and it is recognised under Annex IV to the Convention. The Convention will only apply, however, to those countries that have ratified it. This is exemplified by the dispute that has arisen in the South China Sea where China has claimed territorial sovereignty over a range of interspersed islands. The Philippines has objected, bringing a claim to the United Nations Permanent Court of Arbitration arguing, for example, that these territorial claims interfere with fishing rights guaranteed under the Convention, as well as the environmental damage alleged to have occurred following island reclamation and most significantly, the scope of China’s maritime territorial claims. See R Mitchell, ‘An International Commission of Inquiry for the South China Sea: Defining the Law of Sovereignty to Determine the Chance of Peace’ (2016) 49 Vanderbilt Journal of Transnational Law 749. One of the most interesting common heritage issues lies in the question of whether and how outer space may be owned or controlled. This issue is gaining increasing relevance with the development of advanced satellite technology and the expansion of space exploration programs. One of the primary concerns with endorsing private ownership in outer space is the potential for conflict that such claims may create. To date, space initiatives have assumed that activities are only authorised in order to promote the ‘common heritage of mankind’ (CHM). This stems from the 1967 United Nations Outer Space Treaty where Art I sets out that space is the ‘province of all mankind’ and is not subject to sovereignty claims by individual states. This treaty was ratified by 98 countries including the United States. This effectively means that for those countries privy to the treaty, outer space cannot be appropriated privately and its use belongs equally to all people. However, despite the existence of the treaty, countries with developed satellite and space technology have attempted to assert private property rights in these areas. Consider the comments in the following extract (E Husby, ‘Sovereignty and Property Rights in Outer Space’ (1994) 3 Journal of International Law and Practice 359 at 360): From the beginning of the space age, man has known that space would sustain a wide array of activities and uses. Ostensibly to assure that activities and interests in space might serve the values, needs and wants of all humankind, as well as individual persons and nations, a principle arose that no state should be allowed to have exclusive control of outer space, or of its components including the natural resources of the moon and other celestial bodies. It is clear that if space is to be used for peaceful purposes we must have free, open and orderly conduct on the part of space-faring states. Early in the development of space law, it was recognised that international cooperation with respect to the uses of space is essential to the future of mankind. Thus a state practice emerged that outer space should be used for peaceful purposes. This principle may have initiated the recognition or establishment of a generally accepted rule to the effect that in principle, outer space is, on principles of equality, freely available for all in exploration and use in accordance with existing or future international law or agreements. These are laudable principles, but what do they mean exactly? How far do they go? Do they exclude any or all claims of sovereignty over the space environment? If so, how can any governmental organisation including the United Nations, be permitted to exercise possession and control over outer space? Do these 66

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principles prohibit private ownership over space? If so, what of our cherished right to liberty and property? Do they not exist in outer space? Many problems are likely to arise if one state, individual or organisation asserts exclusive rights over celestial bodies. The obvious concern is, of course, conflicting claims to the same property. These problems inevitably lead to political tension, and increase the possibility of armed conflict. This is the antithesis of the policy behind space law. The underlying thesis of the major treaties making up the framework of space law is the idea of a single human race moving outward from our tiny sphere to explore the vast regions of space, the common heritage of mankind. It is within this thesis that the principles prohibiting exclusive control over the cosmos and requiring equal access originate. But in a world of divided nations, without a political synthesis, how can we move forward as one?

In 1984, the Moon Treaty was implemented with the aim of regulating access, control and ownership over the moon. The treaty promotes a safe and rational division of lunar resources and an equitable division of benefits. As with other natural resources, it implements the common heritage principles under Art II. Despite this, the Moon Treaty does not provide a definitive allocation of property rights, as it only commits signatories to undertake the establishment of an international regime. Private ownership is not explicitly prohibited. The Moon Treaty has not achieved significant success as many countries are not signatories. Non-signatories include countries like the United States, which have the technology to explore and exploit outer space and which also has a developed satellite technology program. The United States did, however, participate in negotiations (International Space Activities 1979: Hearings Before the Science Committee on Space Science and Applications of the Committee on Science and Technology 96th Congress 82 (1979). For such countries, property rights on the moon may be asserted on the grounds of discovery and settlement through the development of a space exploratory station and other acts of exploration. Interest in the exploitation of natural resources on the moon has steadily increased as technology has developed. For a further discussion on this see: K M Zullo, ‘The Need to Clarify the Status of Property Rights in International Space Law’ (2002) 90 Georgetown Law Journal 2413 at 2424, where the author notes that the United States’ interpretation of the Moon Treaty has involved the construction of the common heritage of mankind language so ‘that access to outer space and celestial bodies is available to all without imposing substantive obligations upon states or establishing a regulatory regime. Thus, the United States’ interpretation of the CHM principle is similar to and consistent with its interpretation of the province of mankind principle in the Outer Space Treaty; both are considered general guidelines rather than imperatives to action.’ Neither the Outer Space Treaty nor the Moon Treaty deals with the difficult issue of space debris, which is becoming a greater concern with continued space use and collisions among existing space debris. Eventually, space debris may become so dense and cluttered that it will make space missions impossible. Regulation on this issue is desperately needed and is probably going to have to come from the United Nations. For a further and more detailed discussion on this problem see: G Hollingsworth, ‘Space Junk: Why the United Nations Must Step in to Save Access to Space’ (2013) 53 Santa Clara Law Review 239. See also A D  Pershing, ‘Interpreting the Outer Space Treaty’s Non Appropriation Principle: Customary International Law from 1967 to Today’ (2019) 44 Yale Journal of International Law 149 (where the author argues that the appropriation principle in the treaty was intended to prevent both private individuals and corporations from appropriating any part of outer space, including the moon and celestial bodies, but that in modern times, States have increasingly carved out an exception, allowing the expropriation of extracted space resources including space debris). 67

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1.31  Revision Questions 1. What is the difference between natural and positive rights and how do you think private property should be justified and regulated? 2. Can private property be ‘justified’ and what are the challenges presented by the age of the Anthropocene? 3. What are the alternatives, if any, to a private property regime? 4. What is the basis of the common heritage of mankind principle and how has it been applied to (i) natural resources interests and (ii) outer space? 5. What are some of the problems with the suggestion that human life cannot be owned? To what extent is it possible to ‘own’ human body cells? 6. Why is it not possible to own a ‘spectacle’? What were some of the difficulties that the High Court outlined in Victoria Park Racing and Recreation Grounds Ltd v Taylor that precluded a spectacle or view from being owned?

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1.32  Overview — Categorisation of Property Objects

Categorisation of Property Objects

Real Property (Land)

Corporeal Forms 1. Land 2. Fixtures 3. Native title 4. Territorial sea and sea-bed

Incorporeal Forms 1. Easements (incorporeal rights over land) 2. Profits à prendre 3. Security interests/ charges 4. Carbon sequestration rights ...

Chattels Real (Lease)

Types of Leasehold Interests 1. Fixed term 2. Periodic 3. Tenancy at will 4. Tenancy at sufferance

Personal Property (Goods/...)

Corporeal Forms 1. Goods/ Chattels/ Choses in possession

Incorporeal Forms 1. Chose in action — legally enforceable right against personal property; eg, – debt – shares – bank account

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Possession, Title and Personal Property The Meaning of Possession: Land and Goods 2.1 Finders Keepers Rule 2.2 The Scope of Possessory Title 2.3 Case: Doodeward v Spence 2.3 Commentary 2.4 Case: GLS v Russell Weisz 2.5 Commentary 2.6 Case: The Natural Law Duty to Recognize Private Property Ownership: Kant’s Theory of Property in His Doctrine of Right 2.6 Revision Questions 2.7 Enforceability of Possessory Title 2.8 Case: Asher v Whitlock 2.8 Commentary 2.9 Case: Perry v Clissold 2.9 Commentary 2.10 Possession and Crown Title: Toohey J in Mabo v Queensland (No 2) 2.11 Commentary 2.12 Revision Questions 2.13 The Finders Keepers Rule 2.14 Case: Waverley Borough Council v Fletcher 2.14 Commentary 2.15 Bailment: Consensual Acquisition of Possession 2.16 Possession of Goods: The Jus Tertii Defence 2.17 Case: Costello v Chief Constable of Derbyshire Constabulary 2.17 Commentary 2.18 Revision Questions 2.19 The PPSA 2.20 Revision Questions 2.21 70

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Possession and Seisin 2.22 Case: Seisin and Possession as the Basis of Legal Title 2.22 Remedies for Real and Personal Property 2.23 Revision Questions 2.24

The Meaning of Possession: Land and Goods 2.1  Possession is essentially a physical concept referring to occupation, control or dominion over corporeal objects such as land, goods or resources. If the appropriate level of control can be established, the holder may acquire possession. The threshold physical requirement for possession is complete and absolute dominion rather than a temporary or fleeting control. In the words of Pollock and Wright, ‘A thing taken by a person of his own motion and for himself, and subject in his hands, or under his control, to the uses of which it is capable is in that person’s possession’: An Essay on Possession in the Common Law, Clarendon Press, Oxford, 2000, p 21. Physical possession will arise where an individual has a high level of control over land or an object or resource because that control gives them the power of exclusion: To possess is to have absolute power of dealing with the thing oneself and absolute power of excluding the action of everybody else … Possession is limited of course to the thing possessed, but in other respects the idea of possession is the intoxicating one of absolute and unlimited dominion. A S Thayer, ‘Possession’ (1905) 18(3) Harvard Law Review 196 at 213.

The nature or character of the control, occupation or dominion that must be proven before physical possession can be established depends upon the nature of the land, object or resource in issue. When dealing with land that includes a residential dwelling, physical possession will generally arise where it can be established that the dwelling is substantively occupied in a permanent rather than a temporary manner. By contrast, when dealing with vacant land, physical possession will generally exist where acts of physical control such as fencing or gate-locking can be established. Chattels or personal property are far easier to physically possess because of their inherently movable nature. A person may take control and therefore possess a chattel by the simple act of holding it in a private capacity. For example, a person will possess a motor vehicle where it is locked in his or her garage. The relative ease with which physical possession can be established over personal property makes contextual evaluation important. Possession of personal property can arise in a range of consensual and non-consensual circumstances. Consensual possession will arise where physical possession is consented to by the owner or previous possessor of the goods. This type of possession is often limited or temporal in nature because it is conferred for a specific purpose and is accompanied by legally enforceable rights to reclaim the goods. By contrast, non-consensual possession that is not the product of an illegal act may arise where physical possession has been acquired without the consent of the owner or previous possessor of the goods. This may occur where the owner cannot be found or because there has been no previous owner as the goods have been ‘discovered’ for the first time. Non-consensual possession is more likely to confer an enduring possessory title on the holder because of the limited availability of legal rights in third parties to reclaim the property. 71

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Where a holder acquires physical possession, that possession will also have legal consequences. Physical possession confers a legal title upon the holder that gives that holder an enforceable legal title in the property. This possessory title may, however, be defeated by other legal rights. The basic rule is that possessory title is enforceable against all the world except for the true owner. The true owner will always have a superior claim to that of the possessor because proprietary title is stronger than possessory title. Further, if the title that physical possession confers is the product of consensual possession, that title may be subject to additional contractual or tortious obligations. For example, a tenant may acquire exclusive possession of land and the possession will be regulated by the terms of the lease contract as well as any relevant statutory provisions. Alternatively, where the physical possession of goods are consensually transferred by the owner, the tortious principles of bailment may arise, requiring the possessor to exercise a reasonable standard of care over the goods and obliging the possessor to return the goods into the owner’s possession when requested. While possession of land is generally the consequence of either physical occupation or other acts of control such as fencing, or gate-locking, which may be consensual or nonconsensual, a broad range of circumstances exist in which physical possession of personal goods may arise. Consider the following: • A person may find goods that have been misplaced by the true owner (finder). • A person may discover goods that were never previously possessed (discovery). • A person may steal goods from the true owner (non-consensual, illegal theft). • A person may be given consensual possession of goods by the true owner — whether by sale, lease, gift, bequest, or simply for temporary safe-keeping (consensual transfer).

Finders Keepers Rule 2.2  The legal inchoate possessory title that arises upon establishing physical possession is a particularly important protective device for personal property holders. Where goods have been found or discovered, the true owner may be absent and the legal title that physical possession confers allows the holder to retain an interest in those goods that is almost as powerful as full ownership. This is because the holder can enforce that title against all the world apart from the true owner. This is known as the finders keepers rule. In Hannah v Peel [1945] 1 KB 509, the finder of an old, valuable brooch was held to be in possession of it simply because it was held in a private capacity and, in the absence of the true owner, the ‘finder’ acquired a good title that was enforceable against the rest of the world because the true owner could not be located. In some situations, however, taking control of the object and acquiring possessory title is difficult because of the context in which the object exists. In the case of the shipwreck, The Tubantia [1924] P 78; [1924] All ER 615, it was held that the finders of a shipwreck were in possession of the wreck because they had done everything that a true owner could reasonably be expected to do in watching over and investigating the wreck. Despite the difficulty of maintaining a constant surveillance of an area located in the middle of the sea, the court noted that the divers had explored the wreck, removed obstructions, increased the accessibility of the wreck, worked upon the cargo of the wreck, and consistently brought up different structural pieces of the wreck throughout the diving period. In light of this the court concluded that the divers were in effective control of the wreck because they were in 72

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a position to prevent any similar work being carried out by other divers and were therefore able to preclude anybody else from exercising a similar level of control.

The Scope of Possessory Title 2.3  It is important to understand the nature of possessory title. The importance lies in the fact that it confers a title that is good against all the world except for the true owner. While physical possession is a factual concept, focused upon corporeal control, possessory title is an inchoate concept. The enforceability of possessory title is founded on the right that it confers upon the holder to seek possession. Hence, even a dispossessed holder can maintain an action against the dispossessor (disseisor), because the inchoate legal right retained by the prior possessor is enforceable against the subsequent physical possessor. In this sense, possession is properly acknowledged as the ‘root of title’: see Asher v Whitlock (1865) LR 1 QB 1; Perry v Clissold [1907] AC 73; F Pollock and R S Wright, An Essay on Possession in the Common Law, 2000, pp 94–5. As outlined by Isaacs and Rich JJ in Russell v Wilson (1923) 33 CLR 538: Possession in the relevant sense, is not merely evidence of absolute title; it confers a title of its own, which is sometimes called a ‘possessory title’. This possessory title is as good as the absolute title as against, it is usually said, every person except the absolute owner. LEGAL PROBLEM Bob finds a wallet on a park bench. The wallet contains a large amount of money. Morally, Bob might feel compelled to take the wallet to the local police station. Legally, however, once Bob puts the wallet into his pocket, he acquires a possessory title. Bob may lose physical control when he hands the wallet over to the police; however, he will retain his inchoate legal possessory title that will remain enforceable. Where the owner cannot be located, Bob, as the finder, retains a better title than other possessors and the law will protect that title.

Possessory title confers a present, enforceable right upon the possessor in physical control as well as a legal right to enforce possession in circumstances where the holder is dispossessed of factual possession. The distinction between the physical and inchoate nature of possessory title has been discussed in a number of different contexts. Two examples are extracted below. The first is an extract from the judgment of Higgins J in Doodeward v Spence (1908) 6 CLR 406 that, while concluding that ownership over a human corpse was unlawful, discusses the concept of a ‘special property’ interest which a ‘mere possessor’ acquires as against one who takes goods from him. The second is an extract from an article outlining a different philosophical approach to the concept of possession. This extract examines what the philosopher Emmanuel Kant described as ‘intelligible, legal possession’ over an object, based upon reason on the one hand and ‘factual physical possession’ on the other hand, based upon corporeal control and factual dominion. The philosophical extract provides a useful analysis for understanding how possessory title functions. Once we understand, as outlined by Lord Kenyon CJ, that ‘any possession is legal possession’ (Graham v Peat (1801) 1 East 244 at 246 — quoted by Pollock and Wright, An Essay on Possession in the Common Law, 2000, Pt 1), the connection between factual control and legal enforceability becomes clearer. 73

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  Doodeward v Spence  (1908) 6 CLR 406 Higgins J: … This action is for conversion and detinue of the corpse of a still-born two-headed child. The birth took place in 1868, in New Zealand. The medical man in attendance took the body away, and kept it in a bottle till his death in 1870. His effects were sold by auction; and at the auction the father of the plaintiff bought the bottle and the contents for about £36. The plaintiff exhibited the bottle and contents for gain; was prosecuted and arrested; and the defendant, a Sub-Inspector of Police, seized them under warrant. The plaintiff has demanded the return of what was seized; but the defendant, although he has returned to the plaintiff the bottle and the spirits, still retains the corpse at the University museum. No skill or labour has been exercised on it; and there has been no change in its character. Under these circumstances, I cannot see any reason for doubting that, if this corpse can be the property of any one, it is the property of the plaintiff as against the defendant. It is enough that the plaintiff was in possession of the corpse, and that the defendant took it having no better title to it than the plaintiff. But, in my opinion, there can be no right to recover in trover or in detinue in respect of a thing which is incapable of being property. The action of trover and the action of detinue are actions for wrongfully converting or wrongfully detaining the plaintiff’s property. The foundation of the action is property. In pleadings, the goods converted or detained are stated to be the plaintiff’s goods. It is true that a mere possessor is treated by the law as having the property in goods as against one who takes them from him wrongfully; and at first I thought that, even if there could be no property in this corpse, there could be a right of possession as against the defendant, who took it from the plaintiff. The law treats the right of the mere possessor as against one who takes the thing from him as ‘special property.’ But if there can be no property, there can be no ‘special property;’ and there is no instance that I know of an action of trover or detinue lying for a thing which cannot be the subject of property. But in Fines v Spencer it was held that the possessor of a hawk — a bird not the subject of property until reclaimed or tame — could not succeed in trover against one who took possession of it as it was not ‘reclaimed or tame’; and see Lord Raymond; Grimes v Stacke. The same rule applies to deer: Fines v Spencer. Property involves a right of exclusive and permanent possession. Trover lay for negroes, at the time when the British law recognised property in negroes: Chambers v Warkhouse. They were then merchandise — property. But no one ever heard of an action of trover or detinue for a human being whether alive or dead unless in the case of a slave. No one has heard, I think, of a guardian, entitled to the custody of his ward, bringing an action of trover for the ward. He has to proceed for a habeas corpus, or in equity. Perhaps the true basis of ‘special property,’ the right of a mere possessor to recover from a wrongdoer, is that possession furnishes an irrebuttable presumption as against the wrongdoer that the possessor is the owner; and that is the reason why a plaintiff, if a mere possessor, recovers the full value of the chattel from the defendant. The wrongdoer is estopped from disputing the plaintiff’s title — if there can be a title …

Commentary 2.4 In Doodeward v Spence the High Court concluded that property confers the right of

exclusive and permanent possession; however, if the particular resource or object is ‘special’ in that it cannot be treated as property, because, for example, it is a human life, then it is not possible to acquire a possessory title. Possessory title cannot arise over something that is incapable of being owned. This decision upholds the established principle that a human corpse cannot be owned, although it may be subject to burial rights. It also highlights the non-physical nature of legal, possessory title that is sourced in the enforceability of that

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title against a wrongdoer who acquires possession. In a separate judgment, Griffiths CJ in Doodeward v Spence further suggested that a human corpse may, in some circumstances, be treated as property which then allows a holder to acquire possessory title. His Honour stated: ‘When a person has by the lawful exercise of work or skill so dealt with a human body or a part of a human body in his lawful possession that it has acquired some attributes differentiating it from a mere corpse awaiting burial, he acquires a right to retain possession of it’: at 414.1 The decision in Doodeward v Spence was approved by Mossop J in Roblin v Public Trustee for the Australian Capital Territory [2015] ACTSC 100. In that case, the issue was whether cryogenically stored semen constituted personal property such that upon the death of the young man who had stored the semen, it could pass on under intestacy, to his surviving wife. Mossop J approved of the conclusions of the High Court in Doodeward v Spence; however, noted that given the technological developments, a rigid application of the ‘no property’ rule to validly donated human tissue would ‘open up a cavernous regulatory vacuum which will rapidly widen as umbilical cords, frozen blood vessels, bones, joints and freeze-dried nerves (to name just a few) join blood and blood products as items of storage in tissue banks.’2 As such, Mossop J concluded that human tissue could constitute property, but cases should be determined in accordance with the principles of reason and sense. 2.5  This was further explored by Martin CJ in the Supreme Court of Western Australia in GLS v Russell Weisz (2018) 52 WAR 413, which is extracted below, where it was held that a woman did have property in the sperm of her deceased partner that had been stored at a clinic.

  GLS v Russell Weisz  (2018) 52 WAR 413 Facts: The plaintiff was in a de facto relationship with her partner. They decided to store sperm with a clinic for the future. The partner of the plaintiff subsequently died. The plaintiff was unable to use the sperm in order to conceive a child in Western Australia. However, there is no equivalent prohibition upon the posthumous use of sperm in the Australian Capital Territory (ACT), and a clinic in that jurisdiction was prepared to use the sperm in IVF procedures conducted in the ACT in an endeavour to impregnate the plaintiff after the death of her partner. The plaintiff sought declaratory relief to give effect to the following propositions: 1. she has the right to direct the clinic storing the sperm extracted from Gary’s body to transfer that sperm from Western Australia to the ACT; 2. on the proper construction of the Directions, the approval of the RTC (Reproductive Technology Council of Western Australia) is not required to export the sperm from Western Australia; 3. if, on their proper construction, the Directions do require the approval of the RTC before the sperm may be exported from Western Australia, the Directions are, to that extent, invalid or should be read down so that they do not require the approval of the RTC. (Discussion regarding Question 1 is extracted below.) 1. See also Williams v Williams [1881] Ch D 659; R Magnusson, ‘The Recognition of Proprietary Rights in Human Tissue in Common Law Jurisdictions’ (1992) 18 Melbourne University Law Review 601; P Matthews, ‘Whose Body? People As Property’ (1983) Current Legal Problems 193; D Mortimer, ‘Property Rights in Body Parts: The Relevance of Moore’s Case in Australia’ (1993) 19 Monash University Law Review 217. 2. Quoted from N Palmer and E McKendrick, Interests in Goods, 2nd ed, LLP, London, 1998, at p 44. See also the discussion by Master Sanderson in Roche v Douglas [2000] WASC 146; (2000) 22 WAR 331. 75

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Martin CJ: Question 1 is limited to the question of whether the plaintiff has the right to direct the clinic storing the sperm to transfer the sperm to another clinic in the ACT. The Question does not, in its terms, require the court to determine whether or to what extent the plaintiff has rights of property in the sperm stored by the clinic. I infer that the Question was deliberately crafted in this way. Nevertheless, the plaintiff submits that she does have rights of property in the sperm as the foundation for submissions put in respect of Question 2, to the effect that the word ‘donation’ in cl 6.5 and cl 6.6 of the Directions bears the narrowed legal meaning of transfer of property from one person to another without consideration. In that context the plaintiff submits that she acquired property in the sperm upon its extraction, and retains that property, with the consequence that no ‘donation’ has occurred. For the reasons which I give below, I do not accept the plaintiff’s contentions with respect to the meaning properly given to the word ‘donation’ and its variants in the Directions and, in particular, do not consider that the transfer of proprietary interests or rights has any bearing upon its meaning and application. The question of whether the plaintiff’s rights with respect to the sperm held in storage can be characterised as proprietary in nature involves complex and vexed questions of principle. Because of my assessment that the resolution of that question is not determinative of the outcome of this case, my views on that topic can be expressed with relative brevity. It should first be acknowledged that the concept of ‘property’ may be ‘elusive’.  In a broad sense, ‘property’ may be used to describe a legal relationship between a person and a thing. The relevant legal relationship will generally involve ‘a degree of power that is recognised in law as power permissibly exercised over a thing’.  The nature of the powers recognised in law in relation to a thing may vary significantly, depending upon the context in which the term ‘property’ is used. As the plurality observed in Yanner v Eaton: ‘Property’ is a term that can be, and is, applied to many different kinds of relationship with a subject matter. It is not ‘a monolithic notion of standard content and invariable intensity’ … Because ‘property’ is a comprehensive term it can be used to describe all or any of very many different kinds of relationship between a person and a subject matter. To say that person A has property in item B invites the question what is the interest that A has in B? The plurality illustrated this proposition by reference to the topic under consideration in this case, when they observed that the question of ‘whether, or to what extent, there can be … property in human tissue may illustrate some of the difficulties in deciding what is meant by “property” in a subject matter’. So, in the present case the answer to the question of whether the plaintiff has ‘property’ in the sperm extracted from Gary’s body might turn upon the nature of the power sought to be exercised in relation to the straws in which the sperm are being stored. If the question were, for example, whether the plaintiff has the power, recognised by law, to transfer to another person the full and unrestricted right to use or direct the disposition of the sperm, the answer might well be in the negative, because such a power would be inconsistent with the purpose for which the sperm were extracted in accordance with s 22 of the HTT Act. On the other hand, if the question was whether the plaintiff has the power to direct that the straws be transferred to another clinic for storage pending their use, the answer might be quite different. Question 1 has been formulated in such a way as to pose a question of the latter kind, rather than a question of the former kind.

No property in a corpse It is often said that there is a common law principle to the effect that there is no property in a human corpse. As Dr Hardcastle points out, this principle may have evolved as a consequence of misinterpretation by Blackstone, and mistranslation by Sir Edward Coke. Despite its dubious origins, the principle is now too well established to be doubted. 76

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Body parts As Edelman J has pointed out, writing extra curially, it does not follow from the principle that there is no property in a corpse that there can be no property in a part of a body. So, for example, if a person uses hair cut from their head to create a wig, there is no apparent reason why the wig as a whole, including the hair, could not be the subject of conventional property rights. Following severance the hair becomes a thing quite separate and distinct from the body from which the hair was severed, in the same way as grain harvested from a crop becomes property separate and distinct from the crop, by reason of the act of harvest, or fruit harvested from a tree becomes property separate and distinct from the tree when it is picked. However, at least in the case of body parts or tissue removed from a corpse, the English and Australian cases rely upon a narrower principle than mere severance to sustain the proposition that, in some cases, tissue removed from a body can be ‘property’. The line of cases establishing that, in some circumstances, tissue or part of a human body removed from a corpse can be the subject of property rights are generally described as falling within the ‘work or skill’ exception to the ‘no property’ principle, by reference to the words used by Griffith CJ in the case generally regarded as the source of this principle: Doodeward v Spence. In that case, Griffiths CJ observed: [A] human body, or a portion of a human body, is capable by law of becoming the subject of property. It is not necessary to give an exhaustive enumeration of the circumstances under which such a right may be acquired, but I entertain no doubt that, when a person has by the lawful exercise of work or skill so dealt with a human body or part of a human body in his lawful possession that it has acquired some attributes differentiating it from a mere corpse awaiting burial, he acquires a right to retain possession of it. In Roche v Douglas Master Sanderson incorporated a significant portion of the reasons given by Griffith CJ in Doodeward v Spence in his reasons for concluding that tissue samples taken from a corpse were property in respect of which orders could be made by the court pursuant to O 52 r 3(1) of the Rules of the Supreme Court 1971 (WA). In that case the plaintiff sought an order to the effect that the tissue be tested in order to extract the DNA of the deceased, which could then be used for the purpose of assessing whether or not the plaintiff was the biological daughter of the deceased. It is not clear from the reasons whether the Master relied upon the work or skill required to remove the tissue samples from the body of the deceased in such a way as to render them amenable to DNA testing — the reasons rather suggest some broader approach based upon the fact that the samples had been severed from the body and had a separate and real physical presence. In Yearworth v North Bristol NHS Trust the English Court of Appeal relied upon the work and skill exception, along with other factors particular to the circumstances of that case, to conclude that men who were claiming damages for negligent storage of their sperm were the owners of that sperm. In Australia there have been a number of cases in which it has been held, generally in reliance upon the work and skill exception, that frozen sperm samples can be ‘property’ in the sense that a person or persons may have rights recognised by law in respect of such samples. In Bazley v Wesley Monash IVF Pty Ltd the widow of a man who had arranged for samples of his sperm to be stored by an IVF clinic prior to his undergoing chemotherapy obtained a court order restraining the clinic from destroying the samples after his death on the basis that the sperm samples were property. In Edwards; Re Estate of Edwards the widower and administrator of the estate of a man from whom sperm had been extracted posthumously sought a declaration that she was entitled to possession of the sperm (even though she was not entitled, under the law of New South Wales, to use the sperm for the purposes of artificial reproduction). R A Hulme J applied the work and skill exception enunciated by Griffith CJ in Doodeward v Spence to conclude that the sperm removed from the deceased was property, acknowledging both the imprecision of the concept of ‘property’ in such a context  and the fact that any right or power encompassed within the relevant notion of ‘property’ could be subject to statutory constraint as a result of the legislation relating to artificial reproduction. 77

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R A Hulme J also addressed the question of the identification of the person who had proprietary rights in the sperm. He immediately excluded the deceased, on the basis that as he could not hold any proprietary right in his semen while he was alive, it could not form part of the assets of his estate upon his death. He also excluded the possibility that the property might be held by the doctors and technicians who exercised the work and skill required to extract the sperm from the body of the deceased, on the basis that they were not doing so for their own purposes, but performed those functions on behalf of the widow as her agents. R A Hulme J also excluded the prospect that the widow could have a proprietary right in the sperm samples as an incident of her rights as administrator of the deceased’s estate, on the basis that her rights in that capacity were limited to the duty to decently inter the corpse of the deceased. However, R A Hulme J acknowledged that the views of the administrator of the estate of the deceased would be relevant to the exercise of the discretion with respect to the grant of declaratory relief, and the fact that the widow was also the administrator of the estate was relevant in that respect. In the result, R A Hulme J concluded that such property as existed in the sperm lay with the widow on the basis that the sperm was removed on her behalf and for her purposes and that no-one else in the world had any interest in them. Having concluded, after reviewing the relevant statutory provisions, that they did not preclude the relief sought, R A Hulme J declared that the widow was entitled to possession of the sperm recovered from the body of her late husband. In Re H, AE (No 2), in similar factual circumstances, the Supreme Court of South Australia arrived at the same conclusion as the Supreme Court of New South Wales in Edwards. Gray J relied upon the work or skill exception to conclude that sperm extracted posthumously from the deceased was property and that the widow who had caused the sperm to be removed was the person entitled to such proprietary rights as existed in relation to the sperm, including a prima facie entitlement to possession of the sperm. There are, therefore, three decisions at first instance in the Supreme Courts of Queensland, New South Wales and South Australia in factual circumstances very similar to the present case in which the binding authority of  Doodeward v Spence has been applied to produce the conclusion that rights of property can exist in relation to samples of sperm removed posthumously and that such rights will generally be enjoyed by the person who caused the sperm to be extracted rather than the deceased, or the relevant medical personnel, or the administrator of the deceased estate. As the reasoning in those cases appears to me to be correct and consistent with binding authority, there is no reason why I should not follow those decisions and conclude that the plaintiff has rights with respect to the sperm samples currently in storage which can be categorised as proprietary in nature. The terms in which Question 1 has been cast do not require me to determine the entire ambit or content of the plaintiff’s rights with respect to the sperm samples taken from Gary. As I have already noted, those rights may well be constrained by the operation of, for example, s 22 of the HTT Act, such that the plaintiff could not direct any use of the sperm which is inconsistent with the purpose for which it was removed, in accordance with the authority conferred by that section. The only right which I am required to assess for the purposes of Question 1 is the plaintiff’s right to direct the clinic currently storing the sperm samples to transfer them to another clinic in the ACT. As the exercise of that right would be entirely consistent with the purpose for which the sperm was removed pursuant to the authority conferred by s 22 of the HTT Act, there is no reason, consistently with the authorities to which I have referred, why the plaintiff should not be held to enjoy that right. Before leaving the topic of the plaintiff’s rights with respect to the stored sperm samples, it is necessary to address submissions advanced on behalf of the defendants based on s 25(a) of the HRT Act. I have set out that section above. The defendants rely on the provision for two propositions: (a) because the section refers to rights ‘as though personal property’ the HRT Act impliedly excludes the existence of proprietary rights in human gametes; and 78

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(b) the effect of the section is to vest all relevant rights in the ‘gamete provider’, who in this case was Gary, not the plaintiff. Each proposition must be rejected. For the reasons I have given, the existence of property rights in human tissue remains contentious and, apart from cases like this, the precise circumstances in which proprietary rights in human tissue will be recognised at law remain to be elucidated by decisions of the courts. The HRT Act was enacted well before the Australian decisions recognising the existence of proprietary rights in stored sperm samples to which I have referred. Given this legal uncertainty, the fact that the legislation is expressed in terms of analogy to personal property rights cannot support the inference that the legislature intended to exclude the existence of any rights other than those expressly recognised by the statute. Turning to the second proposition, it may be accepted that, in the ordinary course, the expression ‘gamete provider’ would be taken to refer to the person from whom the gametes are obtained. That is because, in all but the most exceptional circumstances, such as this case, the person from whom the gametes are obtained will be alive at the time they are taken and capable of enjoying rights of control over the gametes, being the rights expressly recognised by s 25(a). However, the circumstances of this case are far from usual. There is no evidence which establishes the point in time at which technology developed to enable posthumous extraction of sperm, thereby establishing whether or not the legislature might be taken to have known of such a possibility at the time the HRT Act was passed in 1991. It can, however, be reasonably inferred that the legislation has been cast in terms apt to the infinitely more common circumstance in which gametes will be obtained from a person who is alive at the time, rather than posthumously. Although the legislature has turned its mind to the question of posthumous use of gametes, by reference to the specification of that topic in s 18(1)(f), legislative contemplation of the prospect that a gamete provider might die before the gametes have been used is quite different to legislative contemplation of posthumous extraction of gametes. At all events, if the expression ‘gamete provider’ in s 25(a) is construed as a reference to Gary, in the circumstances of this case, the section can have no meaningful operation, as Gary was of course dead by the time the rights to which the section refers could be vested in him by its operation. There are at least two ways in which the section could be given a sensible operation in the circumstances of this case. One would be to construe it as only applying to a circumstance in which the person from whom the gametes were obtained is alive and capable of exercising the rights vested by the section. Another means of achieving a sensible operation for this section would be to construe the expression ‘gamete provider’ as applying, in the circumstances of this case, to the person who caused the gametes to be provided to the relevant licence holder - in this case, the plaintiff. On either construction, the section does not support the defendants’ argument. So, in summary, with respect to the defendants’ second proposition based on s 25(a), if the section is construed in the manner for which the defendants contend, it has no meaningful or sensible application to the circumstances of this case. Alternatively, if the section is given a construction which renders it applicable to the circumstances of this case, it does not support the defendants’ proposition. For these reasons, I agree with the parties that Question 1 should be answered affirmatively. Although it is not necessary to determine precisely what rights the plaintiff enjoys with respect to the stored samples of Gary’s sperm, those rights at least include the right to direct the clinic currently storing the samples to transfer them to another clinic in the Australian Capital Territory. Those rights derive from the plaintiff’s status as senior available next of kin within the meaning of s 22 of the HTT Act, the constraints upon the use to which the samples can be put by the operation of that section, and the fact that the plaintiff caused the samples to be extracted, and has paid, and continues to pay, the costs associated with their storage. …

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Commentary 2.6  The decision in GLS v Russell Weisz is an important one because it illustrates an increasing judicial cognisance of the importance of property in the context of IVF technology. C J Martin was prepared to follow the argument of Griffith CJ in Doodeward v Spence to hold that body parts could become property where they had been subject to the ‘work and skill’ rule — that being that where a person has by the lawful exercise of work or skill so dealt with a human body or part of a human body in their lawful possession that it has acquired some attributes differentiating it from a mere corpse awaiting burial, they acquire a right to retain possession of it. The act of giving sperm to a clinic for storage was, Martin CJ held, sufficient to activate this rule, thereby conferring property upon the widow who had caused the sperm to be stored. This effectively means that in the event of the death of the donor of the sperm, their partner can claim property entitlements and exercise relevant statutory powers in accordance with those entitlements. See also L Skene, ‘Property Rights in Human Bodily Materials: Recent Developments’ [2016] University of Otago Festschrifts 8; A Ho, ‘Taking Bodily Parts to the Cashier: Are the Courts Too Slow to Register?’ (2015) 40(1) University of Western Australia Law Review 387; J Edelman, ‘Property Rights to Our Bodies and Their Products’ (2015) 39(2) University of Western Australia Law Review 47.

  The Natural Law Duty to Recognize Private Property Ownership: Kant’s Theory of Property in His Doctrine of Right  Sharon Byrd and Joachim Hruschka (2006) University of Toronto Law Journal 217 … Kant states that the subjective condition of the possibility to use an external object of choice is possession. Although Kant will continue to consider different types of possession, he never gives us a definition of the basic concept itself. Again, Achenwall sheds light on Kant’s concepts and terminology. For Achenwall, possession is the physical capacity (facultas physica) to use a thing to the exclusion of others over time. Achenwall distinguishes between ‘natural possession’ and ‘juridical possession.’ Someone possesses a thing ‘naturally’ when he has control (potestas) over the use of the thing to the exclusion of other persons: he holds, for example, an apple firmly in his hand, or otherwise has control over the apple, and excludes others from taking it for an unspecified period of time. A person possesses a thing ‘juridically’ when she has control over the use of the thing to the exclusion of others and, in addition, has the intent to possess the thing as her own. She holds, for example, an apple firmly in her hand, or otherwise has control over the apple, excludes others from taking it for an unspecified period of time, and, in addition, has the intent to keep the apple in her possession as her own apple. Juridical possession, however, is not ownership. A person can take someone else’s apple and keep it as his own, but he is nonetheless not the real owner of the apple. In contrast, someone can possess a thing (naturally) not as her own but as someone else’s. If one person borrows something from another and intends to return it, then that person possesses the thing borrowed not as her own but as someone else’s. Furthermore, someone can possess a thing (naturally) not as his own and not as someone else’s but, rather, as no one’s thing, which he does not intend to possess as his own either. A person can pick up an apple lying on the road and exclude others from taking it for a certain period of time without the intent to possess it either as his own or as someone else’s but, instead, with the intent to discard it after looking at it.

B Kant’s concepts of physical and intelligible possession With Achenwall’s definitions in mind, let us consider the distinctions Kant draws between different types of possession. Kant distinguishes between ‘sensible’ and ‘intelligible possession.’ 80

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The former is ‘physical possession’; the latter is ‘merely legal possession.’ Kant calls sensible possession ‘physical possession’ in obvious reliance on the physical capacity so central to Achenwall’s theory of possession. We assume that Kant simply relies on Achenwall’s definitions ‘and concepts’ being generally known to his own readers and that, for Kant, possession also means ‘to the exclusion of other persons for an unspecified period of time.’ The decisive factor is the exclusion of third-party use. Without excluding others from the use of the thing at least for some period of time, one cannot physically possess an object. Physical possession is first of all empirical possession. Kant speaks of empirical possession mainly when focusing on the ‘empirical envisaging of possession’ and the ‘empirical concept of possession,’ both of which ‘depend on conditions of space and time.’ It is possession ‘in  appearance (possessio phanomenon).’ In this sense, I possess the place on which I am standing, the apple in my hand, the clothes I am wearing. One must distinguish this empirical envisaging of possession from possession as a ‘pure concept of the understanding,’ which abstracts from all conditions of space and time. Accordingly, possession as a pure concept of the understanding is an abstraction from the empirical concept of possession. The physical aspect of possession is preserved, however, because the possessor has the thing under his control. Kant, like Achenwall, uses the expression potestas for physical control. Such possession is, in other words, factual dominion over a thing. In this sense I (physically) possess my house even when I am not inside it. Kant uses the example of a field, which I can have under my control even when I am in a totally different place. Kant contrasts empirical possession and possession as a pure concept of the understanding by contrasting ‘holding’ (Inhabung) and ‘having’ (Haben) and explains the concept of ‘holding’ with the Roman law concept detentio. The German words Inhabung and Haben have the same root — hab — and even today the modern German expression Innehaben (‘holding,’ eg, a position) designates more concretely a situation of possession than the word Haben, for example, in the expression Habe und Gut (‘belongings and goods’). Although possession as a pure concept of the understanding (‘having’) abstracts from empirical conditions of space and time, this having is, in light of the ‘control’ (potestas) I exercise over my house when I am not present in the house, for example by locking the door, still sensible (physical) possession. In contrast, intelligible possession is ‘merely’ legal possession, meaning purely legal possession. Intelligible possession is ‘non-physical possession’ or ‘non-empirical possession.’ It is not the same as Achenwall’s juridical possession. I can be the intelligible possessor of a thing even without having the physical capacity to use the thing or control its use, which is not true of Achenwall’s juridical possession. Intelligible possession of a thing is also called ‘ownership.’ Intelligible possession is possession as a concept of reason (Vernunftbegriff), as opposed to physical possession of a thing under my control as a pure concept of the understanding (reiner Verstandesbegriff). Intelligible possession is legal dominion over the thing, possessio noumenon, in contrast to physical possession as factual dominion over a thing. Kant’s central question in his theory of possession is this: How is intelligible possession possible?

C The permissive law of practical reason To understand how Kant answers this question in § 2 of the Doctrine of Right, let us again consider the use of things. As we have noted above, and as Kant himself emphasizes several times, the concept of use is connected to the concept of (physical) possession. (Physical) possession of a thing is ‘the subjective condition of the possibility of any use [of it],’ which means that using a thing presupposes possessing it. Accordingly, ‘use’ of a thing means using it over an unspecified period of time to the exclusion of other persons, because one can speak of ‘(physical) possession’ of a thing only when third persons are excluded from using that thing over a certain period of time. In Kant’s discussion in § 2, the concept of an ‘object of my choice’ also plays a role. Kant defines ‘object of my choice’ as ‘something I physically have in my power (potentia) to use in 81

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any way whatsoever.’ Kant draws an important distinction between having something under my control (Gewalt or potestas) and having something in my power (Macht or potentia). I have something under my control when I physically possess the object, either because I am holding it in my hand (empirical physical possession) or because I otherwise have dominion over it in fact (non-empirical physical possession as a pure concept of the understanding). I have an object of my choice (a thing) in my power when I physically possess it or when I can take the object into my physical possession. The distinction, Kant notes, lies in the fact that control over an object (a thing) ‘presupposes’ ‘an act of choice,’ or, as we would say today, requires a taking of the object into my control with the will (intent) to possess it. Having something in my power refers to a simple capacity. For Kant’s discussion in § 2, a person need not actually have the object of her choice (the thing) in her possession. In order to conceive of an object as an object of choice, it is sufficient to think that she has it in her power, either because she physically possesses it or because she could acquire physical possession of it. Kant then reasons as follows: a thing is an object of my choice when I have it within my physical power (I possess it or could gain possession of it). I am thus physically capable of using the object of choice (the thing) to the exclusion of others, meaning that I can take the apple into my hand (empirical possession) and eat it, and I can take the field under my control (possession as a pure concept of understanding) and can sow and reap on it to the exclusion of others. The question then arises whether there can be an ‘absolute prohibition against using’ the object of my choice that I intend to use. Kant emphasizes the absolute nature of the prohibition and asks, Can it always be ‘wrong’ to use the thing (to the exclusion of others)? Of course it is prohibited to eat an apple or to use a field that belongs to someone else. Still, there are situations in which a thing is within my range of (physical) power that is not someone else’s. Can it be prohibited for me to use this thing (to the exclusion of others)? Kant’s answer is negative. ‘Pure practical reason’ can ‘in regard to’ such a thing contain ‘no absolute prohibition of [its] use.’ Consequently, if I violate no one else’s rights, then it cannot be (legally) prohibited to use an object of my choice for an unspecified period of time, to the exclusion of others, if I am physically capable of doing so. Kant’s reasoning is that such a prohibition ‘would be a contradiction of external freedom with itself.’ If use of a thing to the exclusion of others were wrong, ‘freedom would rob itself of the use of its choice in regard to an object by placing all usable objects beyond any possibility of using them, ie, it would destroy them in a practical sense and make them into res nullius.’ Kant is not simply speaking metaphorically. Usable things would become legally unusable. Such a prohibition would mean that I could not legally acquire control or have control over a (masterless — herrenlos — or unowned) field, whose ploughing, sowing and reaping presuppose my physical control over the field to the exclusion of others’ use over a longer period of time. Under such a law, I could not take and eat an (unowned) apple legally. No one would be permitted to do so. The field and the apple would be unusable by force of ‘law.’ As a consequence, the entire land and the things upon it could not be used by force of law. We cannot conceive of such a law as a law of reason and thus as a law of freedom. Accordingly, we must assume that acts of taking possession and using objects of choice for an unspecified period of time to the exclusion of others are legally permitted. Legally, I am permitted to take the unclaimed field under my control and keep it under my control. I am permitted to take and eat the unclaimed apple. In each case, I am permitted to exclude others from using the field and the apple. ‘I am permitted …’ means, in each case, that I am free to acquire and keep control of the field and the apple, or not to do so. In this context, the permission extends farther than it may seem to do at first blush. In his argument, Kant presupposes something as self-evident that may not be immediately clear to his readers. Persons who first acquire physical possession of (unowned) things and use them do so with precisely one of three possible intentions: they acquire them as their own, as someone else’s, or as no one’s. Kant’s argument covers all three cases, because the argument is not 82

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limited by the actor’s permissible intent in taking possession. For Kant, it is thus allowed to take an unowned thing into possession as one’s own; it is allowed to take it into possession as someone else’s; it is allowed to take it into possession as no one’s. Whatever the taker’s mental state may be, taking the thing into possession is permitted. Hence, it is allowed to take unowned things into physical possession for an unspecified period of time to the exclusion of others with the intent that they be one’s own, as Achenwall phrases it for his concept of juridical possession. If I am permitted to take an unowned thing into possession to the exclusion of others, then I am permitted to take it into possession as mine. If so, then the institution of ownership is established. Possession as one’s own becomes one’s own property if possession as one’s own is permitted. Thus Kant can say, at the end of his argument, ‘Therefore it is an a priori prerequisite of practical reason to assume that any object of my choice is an objectively possible mine and thine and to treat it accordingly.’ The subjective mine and thine (possession as one’s own) becomes the objective mine and thine (property ownership) if the subjective mine and thine is permitted. It is important at this stage to be clear on what Kant has established with his arguments. He has established that it is legally possible to have an external object of choice as mine to use. To be able to use an external object of choice, I must possess it. To possess an external object of choice, I must exclude others from possessing it for however long I choose to use it. I thus am legally permitted to possess an external object of choice to the exclusion of others over an unspecified period of time in order to use it. Kant indicates several times that ‘use’ means ‘any use whatsoever’ (beliebiger Gebrauch). ‘Use’ can mean, for example, in the case of a porcelain cup, that I drink out of it, put it on my shelf to admire as a work of art, wear it as an unusual hat, hide it to keep it for the next time I drink coffee, smash it at a wild party for fun, give it to my neighbour as a gift, sell it or rent it out through contract to another person, or pass it over to my child on my deathbed. ‘Use’ thus covers any conceivable use. It excludes any other person’s evaluation of whether what I am doing with the object is ‘appropriate’ use or not, as no one else has a right to pass judgement on potentially desirable and thus permissible forms of use — at least, not in the state of nature in which I find myself at this stage of Kant’s argumentation. The bottom line of § 2 of the Doctrine of Right is the postulate of private law, namely, that it is possible to have any external object of choice as mine. … Kant gets this originality from the right to physical possession of a piece of land, which everyone originally has. We are all in physical possession of a piece of land, which we have merely because we are located on this earth. This physical possession of a piece of land is connected with a right each of us has. We all have with respect to all others — each person against each and every other person — a right ‘to be where nature or fate placed us (without our will).’ Admittedly, this right is not an ownership right, but it is a right that each of us has through the original right to freedom. No one may throw another person into the ocean or rocket that person into outer space against his will, because that act would violate his original innate right to freedom. Because the right to physical possession of a piece of land is derived from the original right to freedom, it is also original. The place on this earth that each of us rightfully possesses is not a fixed place but, rather, some unspecified place. Each of us has a right to a place to stand somewhere. In the Preparatory Work, Kant calls this right to possession ‘disjunctively universal’ (disjunctiv allgemein). ‘Disjunctively’ means that ‘each person can possess this or that place on the earth.’ ‘Universal’ is in contrast to ‘particular.’ The universal possession each person has to a piece of land is not possession of a particularizable, and certainly not of a particularized, part of the earth’s surface but, rather, possession removed from all particularity, or an unparticularized ‘universal’ possession. Original possession is common possession because individual possession, at this point in the argument, is still disjunctively universal, or not yet particularized, and the earth’s surface is limited. Kant emphasizes the spherical nature of the earth. The earth is not an ‘infinite plane’; instead, we are all together ‘enclosed within certain borders,’ which by natural necessity results 83

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in a ‘community’ of human beings. Here ‘community’ means that (over the long run) human beings will necessarily meet. They hold the land of the earth’s surface in common possession because, added together, their individual rights to stand somewhere extend to anywhere on the available land. Individually, no one has a right to stand anywhere and everywhere, because others within the ‘community’ of interacting human beings are already standing in some of the places on the earth’s surface. Added together, however, their individual rights extend to anywhere on the inhabitable land. Thus common possession does not mean that together they have one right to possess the earth’s surface as a community or society, because if the community includes everyone, then there is no one left against whom this right can be had. Common possession simply means the sum total of their individual rights to stand somewhere taken as a whole and in relation to the land available on the surface of the earth. For whole nations, Kant describes the original community of the land as possible physical interaction, which he also calls commercium. This ‘community’ and common possession are original, because they are derived from original (disjunctively universal) individual possession.

D Acquisition of a right in rem The right to acquire ownership of concrete pieces of land is based on the disjunctively universal right to possess a piece of land. Kant writes in the Preparatory Work, ‘The acquirer can take possession of land through his private choice in order to have the land as his,’ ‘because he is originally (prior to any act with legal effect) in possession of it.’ Similarly, he states in § 11 of the Doctrine of Right, ‘The right to a thing is a right to use a thing privately which I have in common possession with all others.’ The emphasis here should be placed not on the common nature of this possession but, rather, on the fact that I am already in possession of the thing that is to be acquired. Kant’s idea is that I have always had (disjunctively universal) physical possession of a piece of land, that this possession has legal relevance, and that this legally relevant physical possession is the reason that I can acquire a piece of land through an act with legal effect (particularly through taking it). The question is why that should be so. The answer can only be that I have a right to a place on this earth and by taking an (unowned) piece of land I am particularizing my right. This particularization, or the transition from disjunctively universal possession to physical possession of a particular concrete piece of land, is the decisive move …

2.7  Revision Questions 1. In what circumstances might it be said that a block of vacant land has been possessed? 2. Why is possessory title important for personal, movable property? 3. What is the difference between physical possession and legal possession and why is this difference relevant? 4. What does ‘inchoate legal title’ mean? 5. What is the foundation of the legal right to possess land (an intelligible right) according to Kant? What is the connection, according to Kant, between physical, universal possession and legal, reasoned possessions (see extract above)? 6. What is the relevance of ‘particularizing’ a right over a piece of land? Why do you think that Byrd and Hruschka in the above extract felt that ‘particularization’ was the ‘decisive’ move in the acquisition of a right in rem? 7. Why do you think that prior possessory title will defeat subsequent possessory title? 8. What is the basis for recognising property in body parts that have been removed from the body? 84

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Enforceability of Possessory Title 2.8  Possessory title is fundamentally different to proprietary title. The primary difference lies in the scope of enforceability. Under what is known as the ‘relativity of title’ principle, possessory title, while conferring valid title upon the possessor, is not an in rem title because it is not enforceable against the rest of the world: the title of the true owner will, even where that owner does not have current possession, defeat the title of a possessor. The true owner holds proprietary title, which is an in rem title and, because it is enforceable against all the world, is stronger than possessory title. This means, as outlined above, the title of the true owner will always defeat the title of a possessor. The only real exception to this principle lies in the principle of adverse possession. Adverse possession may arise where the title of a possessor has endured for such a period of time that it is coupled with a statutory limitation of actions defence that prevents a documentary titleholder from defeating the rights of the adverse possessor: adverse possession is discussed in detail in Chapter 4. LEGAL PROBLEM X holds a freehold estate in land but does not live there. Y comes onto the land and occupies the land for three years. Y has occupied the land and is in complete control. After three years, X discovers Y’s occupation and seeks to have Y removed. Y’s possessory title in the land will be defeated by X’s proprietary title. Y has not occupied the land for long enough to claim adverse possession and defend the claim by X, and the possessory title alone is insufficient to defeat the in rem claim of the true owner.

However, the position is different where the dispute is between a prior and a current possessory titleholder. Where there is a dispute between a prior possessor who has been dispossessed and a subsequent possessor who remains in possession, under the ‘relativity of title’ principle, the title of the prior possessor is stronger. This means that the title of a prior possessor will defeat that of the subsequent possessor. One of the reasons for the strength of a prior possessory title lies in the fact that it confers upon the holder rights to transfer, bequest or devise that title. If the holder of a possessory title devises that title by will, it would be unfair if the interest acquired by a beneficiary to that will could be defeated by the possessory interest acquired by a subsequent possessor. To allow this would effectively prevent possessory titleholders from exercising the rights that attach to their title. The issue was set out in the important English decision of Asher v Whitlock (1865) LR 1 QB 1, which is extracted below.

  Asher v Whitlock  (1865) LR 1 QB 1 Facts: Thomas Williamson held possession over a cottage which he built on waste land within a manor. When he died he passed this title on to his wife, Lucy, until she remarried or died and then to his daughter, Maryanne Williamson, absolutely. When he died, the possessory title passed on to his wife. She subsequently remarried the defendant who then moved into the cottage. The interest of the wife had ceased at the point when she remarried and it passed to Maryanne Williamson. The wife and daughter subsequently died and the defendant stayed on in the house. The heir at law to Maryanne’s possessory title, the plaintiff, argued that 85

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he had a better possessory right to the land than that of the defendant who was in actual, physical possession. Cockburn CJ: … I take it as clearly established, that possession is good against all the world except the person who can shew a good title; and it would be mischievous to change this established doctrine. In Doe v Dyeball, one year’s possession by the plaintiff was held good against a person who came and turned him out; and there are other authorities to the same effect. Suppose the person who originally inclosed the land had been expelled by the defendant, or the defendant had obtained possession without force, by simply walking in at the open door in the absence of the then possessor, and were to say to him, ‘You have no more title than I have, my possession is as good as yours,’ surely ejectment could have been maintained by the original possessor against the defendant. All the old law on the doctrine of disseisin was founded on the principle that the disseisor’s title was good against all but the disseisee. It is too clear to admit of doubt, that if the devisor had been turned out of possession he could have maintained ejectment. What is the position of the devisee? There can be no doubt that a man has a right to devise that estate, which the law gives him against all the world but the true owner. Here the widow was a prior devisee, but durante viduitate only, and as soon as the testator died, the estate became vested in the widow; and immediately on the widow’s marriage the daughter had a right to possession; the defendant however anticipates her, and with the widow takes possession. But just as he had no right to interfere with the testator, so he had no right against the daughter, and had she lived she could have brought ejectment; although she died without asserting her right, the same right belongs to her heir. Therefore I think the action can be maintained, inasmuch as the defendant had not acquired any title by length of possession. The devisor might have brought ejectment, his right of possession being passed by will to his daughter, she could have maintained ejectment, and so therefore can her heir, the female plaintiff. We know to what extent encroachments on waste lands have taken place; and if the lord has acquiesced and does not interfere, can it be at the mere will of any stranger to disturb the person in possession? I do not know what equity may say to the rights of different claimants who have come in at different times without title; but at law, I think the right of the original possessor is clear. On the simple ground that possession is good title against all but the true owner, I think the plaintiff’s entitled to succeed, and that the rule should be discharged. [Mellor J concurred.]

Commentary 2.9  Cockburn CJ concluded that the holder of the prior possessory title had a better title than the person in actual physical possession. The heir at law inherited this ‘prior possessory title’ when Thomas Williamson died. His Honour made it clear that possessory title is capable of being passed on. Hence, the ‘inherited’ right that the heir at law acquired defeated the subsequent possessory title of the defendant. This case illustrates the rule that a prior possessory title will defeat a subsequent possessory title. Proof that a third party may have a better title (ie the title of the true owner) will not affect the enforceability of the prior possessory title — as on the facts, the land upon which the cottage was built was actually owned by the lord of the manor. Title held by a third party will only be relevant in circumstances where it can be shown that the interest held by that third party demonstrates a lack of possessory title; for example, where the title held by a third party proves that the prior possessor has abandoned the land or leased it to another. The  fundamental principle underlying the decision in Asher v Whitlock lies in the fact that possession is, in itself, a good title against anyone who cannot show a prior and therefore better right to possession. This decision was subsequently confirmed by the Privy Council in Perry v Clissold [1907] AC 73, which is extracted below. 86

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  Perry v Clissold  [1907] AC 73 Facts: This was an appeal from the Australian High Court. It considered the issue of whether lands which were compulsorily acquired under the Lands for Public Purposes Acquisition Act 1880 (44 Vict No 16) (now covered under the Public Works Act 1900) included possessory title and which entitled the holder to claim appropriate compensation. Lord Macnaghten: … It appeared from the papers which were forwarded with the claim that in the year 1881 Frederick Clissold entered into possession of the land, which was then open and vacant, and enclosed it by a substantial fencing, and that ever since the enclosure, up to the time of resumption, Clissold held exclusive possession of the land without notice of any adverse claim, and let it to different tenants and received the rents for his own use and benefit, and duly paid all rates and taxes in respect of the land which stood in his name in the rate-books of the municipality of Canterbury. The Minister refused to entertain the claim to compensation. The Supreme Court upheld the view of the Minister. The High Court reversed this decision, and granted a mandamus requiring the Minister to cause a valuation to be made. The only question on this appeal was whether or not a prima facie case for compensation had been disclosed. On the part of the Minister it was contended that, upon the plaintiff’s own showing Clissold was a mere trespasser, without any estate or interest in the land. Their Lordships are unable to agree with this contention. It cannot be disputed that a person in possession of land in the assumed character of owner and exercising peaceably the ordinary rights of ownership has a perfectly good title against all the world but the rightful owner. And if the rightful owner does not come forward and assert his title by process of law within the period prescribed by the provisions of the Statute of Limitations applicable to the case, his right is for ever extinguished, and the possessory owner acquires an absolute title. On behalf of the Minister reliance was placed on the case of Doe v Barnard, 13 QB 945 which seems to lay down this proposition, that if a person having only a possessory title to land be supplanted in the possession by another who has himself no better title, and afterwards brings an action to recover the land, he must fail in case he shews in the course of the proceedings that the title on which he seeks to recover was merely possessory. It is, however, difficult, if not impossible, to reconcile this case with the later case of Asher v Whitlock LR 1, QB 1, Lush J having been counsel for the successful party in Doe v Barnard. The conclusion at which the Court arrived in Doe v Barnard 13 QB 945 is hardly consistent with the views of such eminent authorities on real property law as Mr Preston and Mr Joshua Williams. It is opposed to the opinions of modern text-writers of such weight and authority as Professor Maitland and Holmes J of the Supreme Court of the United States. See articles by Professor Maitland in the Law Quarterly Review, vols 1, 2 and 4; Holmes, Common Law, p 244; Prof J B Ames in 3 Harv Law Rev 324n. Their Lordships are of the opinion that it is impossible to say that no prima facie case for compensation has been disclosed. They do not think that a case for compensation is necessarily excluded by the circumstance that under the provisions of the Act of 1900 the Minister acquired not merely the title of the person in possession as owner, but also the title, whatever it may have been, of the rightful owner out of possession, who never came forward to claim the land or the compensation payable in respect of it, and who is, as the Chief Justice says, ‘unknown to this day’. The Act throughout from the very preamble has it apparently in contemplation that compensation would be payable to every person deprived of the land resumed for public purposes. It could hardly have been intended or contemplated that the Act should have the 87

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effect of shaking titles which but for the Act would have been secure, and would in process of time have become absolute and indisputable, or that the Governor, or responsible Minister acting under his instructions, should take advantage of the infirmity of anybody’s title in order to acquire his land for nothing. Even where the true owner after diligent inquiry cannot be found the Act contemplates payment of the compensation into Court to be dealt with by a Court of Equity. It only remains for their Lordships to express their opinion that the valuation to be made should be a valuation of the land as at the date of the notification of resumption. When the valuation is made it will be for the claimants to take such proceedings as they may be advised to recover the amount, unless the Minister thinks fit to pay them or to pay the money into Court. For these reasons their Lordships humbly advised His Majesty that the appeal should be dismissed, and ordered the appellant to pay the costs of the appeal.

Commentary 2.10 In Perry v Clissold the Privy Council concluded that a possessory titleholder of land

which had been compulsorily acquired was entitled to obtain compensation. In line with the conclusions of the court in Asher v Whitlock, the Privy Council held that just compensation was a right that was available to support possessory title where the land was resumed by the Crown. Possessory title confers an interest that is capable of being alienated and, if land to which such a title relates is compulsorily acquired, there is no reason why the holder should not be compensated. As Lord Macnaghten stated (at 79): ‘It cannot be disputed that a person in possession of land in the assumed character of owner and exercising peaceably the ordinary rights of ownership has a perfectly good title against all the world except the rightful owner’. If possession confers a good title, which is enforceable against all the world except for the rightful owner, where such a title is resumed by the Crown, compensation should be available. See also NRMA Insurance Ltd v B & B Shipping & Marine Salvage Co Pty Ltd (1947) 47 SR (NSW) 273, 276; 64 WN 58 at 61 where Jordan CJ stated: ‘de facto possession is prima facie evidence of seisin in fee and right to possession’; Doe d Hall v Penfold [1838] EngR 489; 8 C & P 536 at 537; 173 ER 607 at 608; Allen v Roughey (1955) 94 CLR 98 at [26] per Fullagar J; Clissold v Perry (1904) 1 CLR 363 at 366 per Griffith CJ stating that ‘possession is a good title against all the world except the real owner. It is a saleable and devisable interest’; Shaw v Garbutt (1996) 7 BPR 14816 at 14832; Nolan v Nolan (2003) 10 VR 626 at [126] per Dodds-Streeton J; Russell v Wilson (1923) 33 CLR 538 at 546 per Isaacs and Rich JJ; Planning Commission (WA) v Temwood Holdings Pty Ltd (2004) 221 CLR 30 at [43] and [98] per McHugh J, noting that ‘the title against all the world but the rightful owner of a person in possession in the assumed character of an owner and exercising peaceably the ordinary rights of ownership was conferred by the common law, although by operation of limitation statutes the possessory owner might then acquire an absolute title’; and J M Lightwood, A Time Limit on Actions, Butterworths, London, 1909, esp at p 120.

Possession and Crown Title: Toohey J in Mabo v Queensland (No 2) 2.11  The nature, scope and entitlements attached to possessory title were explored in detail in the judgment of Toohey J in Mabo v Queensland (No 2) (1992) 175 CLR 1 in the context of examining the history of Crown sovereignty and the relevance of prior Indigenous possession. An extract of the judgment of Toohey J (at 161–5) is set out below: 88

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… The plaintiffs’ submissions with respect to possessory title may be summarised in this way. The common and statute law of England applied in a settled colony, where applicable to local conditions. English land law applied in the Colony of Queensland. According to common law then, as now, possession of land gives rise to a title which is good against all the world except a person with a better claim. Such a possessor is ‘seised’ of the land so that he or she acquires an estate in the land which is an estate in fee simple. It is a fee simple because the interest acquired is presumed to be such until shown otherwise. Therefore, even a wrongful possessor acquires a fee simple (sometimes called a ‘tortious fee simple’). See Pollock and Wright, ‘An  Essay on Possession in the Common Law’ (1888) (hereafter ‘Pollock and Wright’), p 94, effective against all the world except a person with a better right. But, in addition, the title arising from possession is presumed to be lawful and by right (that is, it is presumed to be the best right to possession) unless the contrary is proved. According to the plaintiffs’ submissions, the Crown could not show that, on acquisition of New South Wales or Queensland, it had a better claim to possession of occupied land and so the presumption of a fee simple title in the indigenous possessors of land was left undisturbed. Such a title would have been held of the Crown, however, which held a radical title to all acquired territory. In order to establish such a possessory title, the indigenous inhabitants would have to prove occupation by their ancestors at the time of settlement, such that it amounted in law to possession of particular areas of land. This, they said, could be proved by reference to the findings of Moynihan J. In the absence of argument to the contrary, it may be accepted that New South Wales and subsequently Queensland were settled colonies. It may also be accepted that English land law and its two fundamental doctrines, estates and tenures, applied in these colonies, AttorneyGeneral v Brown (1847) 1 Legge, at p 318, though, as we have seen, Stephen CJ understood its application to have a different effect. The issues which arise for consideration, therefore, are: (a) the validity of the proposition that possession gives rise to a presumption of a fee simple title against all but a better claimant; (b) the validity of the claim that the Crown was not, at the time of annexation, a better claimant to possession; and (c) the question of what, as a matter of law, amounts to possession of land. As the plaintiffs put their case, there would be no more favourable consequences flowing from acceptance of their submissions as to possessory title than from acceptance of their submissions as to traditional title. After contending for the existence of a possessory title, the plaintiffs relied on the same line of argument as they did for traditional title. Significantly, they conceded that a possessory title is extinguishable by ‘clear and plain’ legislation. And the argument as to fiduciary duty and trust did not focus on the existence of a possessory title. It may have been too great a concession that a fee simple arising from possession is ‘extinguishable’ in the same way as traditional title. But, given my conclusions as to traditional title and, especially, those as to the existence of a fiduciary obligation on the Crown arising from it and given what follows concerning the Racial Discrimination Act there is no need to express a firm opinion on the plaintiffs’ arguments concerning possessory title. Nevertheless, those arguments raised important issues which have not been examined before in this area of the law, and something should be said about the principles of law on which they rested. The plaintiffs’ case in this regard owed much to McNeil; so too does this portion of my judgment. (ii) The relationship between possession and title: Does possession give rise to a presumptive title? ‘Possession’ is notoriously difficult to define. See Pollock and Wright, pp 1–42; Tay, ‘The Concept of Possession in the Common Law: Foundations for a New Approach’, (1964) 4  Melbourne University Law Review 476 but for present purposes it may be said to be a conclusion of law defining the nature and status of a particular relationship of control by a person over land. ‘Title’ is, in the present case, the abstract bundle of rights associated with 89

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that relationship of possession. Significantly, it is also used to describe the group of rights which result from possession but which survive its loss; this includes the right to possession. In the thirteenth century Bracton wrote Bracton on the Laws and Customs of England (Thorne Tr) (1977), vol III, p 134: ‘(E)veryone who is in possession, though he has no right, has a greater right (than) one who is out of possession and has no right’. It is said that possession is the root of title, Asher v  Whitlock (1865) LR 1 QB 1; Perry v Clissold (1907) AC 73; Calder (1973) SCR, at p 368; (1973) 34 DLR (3d), at p 185; Megarry and Wade, The Law of Real Property, 5th ed (1984) (hereafter ‘Megarry and Wade’), pp 105–106; Pollock and Wright, pp 22, 94–95. Cf Holdsworth, A History of English Law, 2nd ed (1937), vol VII (hereafter ‘Holdsworth, vol VII’), pp 64–65, but see analysis of Holdsworth, vol VII, in Allen v Roughley (1955) 94 CLR 98, at pp 134 ff. To understand this statement it is necessary to have regard to the history and development of actions for the recovery of land. In the present context, it is enough to recall that through the seventeenth, eighteenth and nineteenth centuries ejectment became the most popular action for the recovery of interests in land — both leasehold and freehold, Holdsworth, vol VII, p 9. And despite its abolition in 1852, its principles remain the basis of present actions for the recovery of land, Bristow v Cormican (1878) 3 App Cas 641, at p 661; Megarry and Wade, pp 105, 1158–1159. It is therefore the focus of the present inquiry, the principles on which it is based being relevant both at the time of the acquisition of the Islands and now. Ejectment was a response to the growing cumbersomeness and inefficiency of the old real actions. The real actions, so named because they provided specific recovery of interests in land, not merely damages, Holdsworth, A History of English Law, 5th  ed (1942), vol  III (hereafter ‘Holdsworth, vol III’), pp 3–4; Holdsworth, vol VII, p 4, emerged in the twelfth and thirteenth centuries. The nature and history of these forms of action are canvassed by Holdsworth, Holdsworth, vol III, pp 3–29 and by Pollock and Maitland, The History of English Law, 2nd ed (1898), vol II (hereafter ‘Pollock and Maitland’), pp 46–80; it is unnecessary to repeat what is said by those writers. (iii) Ejectment: The relationship between possession and title One view: see Holdsworth, vol VII, pp 62–64 is that the advent of ejectment represented a fundamental change in the concept of ownership in English law, involving the idea of absolute title divorced from its radical attribute, possession. But the other view: see Hargreaves, ‘Terminology and Title in Ejectment’, (1940) 56 Law Quarterly Review 376; Pollock and Wright, pp 93–97; Megarry and Wade, pp 104–105; Asher v Whitlock (1865) LR 1 QB 1, at p 5, which is more persuasive, is that the basic relationship between possession and ownership of land established by the earlier real actions, involving the idea of relative claims to possession, was maintained or even emphasised in the action of ejectment. A successful claim to an interest in land comprised the better claim to possession and its associated rights as between the parties. In order to show a title which would defeat the defendant in possession, the plaintiff in ejectment had to prove a right of entry; the defendant could rely on possession. Therefore, the plaintiff was put to proof of the strength of his or her title and could not rely on the weakness of the defendant’s title, Roe d Haldane v Harvey (1769) 4 Burr 2484, at p 2487 (98 ER 302, at p 304); Goodtitle d Parker v Baldwin (1809) 11 East 488, at p 495 (103 ER 1092, at p 1095). The central issue, therefore, in an action for ejectment, and on which opinions have differed, was what circumstances gave a right of entry. Was proof by the plaintiff of mere prior possession sufficient to found a right of entry against the defendant, indicating that possession gave rise to an enforceable ‘title’, or was more required? Did possession give rise to a title which survived the loss of possession? The relevance of this question is that it points up the nature of the entitlements arising from the mere possession which would, subject to proof, have existed immediately on annexation. So long as it is enjoyed, possession gives rise to rights, including the right to defend possession or to sell or to devise the interest, Asher v Whitlock; Ex parte Winder (1877) 6  Ch  D 696; 90

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Rosenberg v Cook (1881) 8 QBD. A defendant in possession acquires seisin even if possession is tortiously acquired. That is, a person in possession has an estate in fee simple in the land; it is this interest on which a defendant in an action for ejectment could rely. The disseisee loses seisin and acquires a right of entry in its stead, Wheeler v Baldwin (1934) 52 CLR 609, at pp 631–633; Elvis v Archbishop of York (1619) Hob 315, at p 322 (80 ER 458, at p 464); Pollock and Wright, pp 93–94; Maitland ‘The Mystery of Seisin’ (1886) 2  Law Quarterly Review 481, esp pp 482–486. A possessor acquires a fee simple estate because the fullest estate known to the law is presumed until a lesser estate is proved, Wheeler v Baldwin (1934) 52 CLR, at p 632. And, in the circumstances under consideration, there is no possibility of a leasehold estate at the time of annexation or of some other lesser estate. Applied to these circumstances, prima facie all indigenous inhabitants in possession of their land on annexation are presumed to have a fee simple estate. But what does English land law have to say if possession of land is lost? The seisin and fee simple enjoyed as a result of possession would also be lost because each successive possessor must enjoy the rights directly associated with possession. According to this analysis, the last possessor only in any succession would enjoy the entitlements. If the Crown dispossessed an indigenous people, its title arising from possession would be the best claim. This was the effect of Holdsworth’s analysis of land law. He concluded that proof of prior possession was insufficient in itself to provide a right of entry in the plaintiff against a defendant who was a mere possessor, Holdsworth, vol VII, pp 61–68; Stokes v Berry (1699) 2 Salk 421 (91 ER 366); Doe d Wilkins v Marquis of Cleveland (1829) 9 B and C 864 (109 ER 321). That is, possession of itself gives rise to no title which survives dispossession. The better understanding is, I think, that if no other factors come into play, then, regardless of the length of time, as between mere possessors prior possession is a better right, Allen v Rivington (1670) 2 Wms Saund 111 (85 ER 813); Doe d Smith and Payne v Webber (1834) 1 AD and E 119 (110 ER 1152); Doe d Hughes v Dyeball (1829) M and M 346 (173 ER 1184); Asher v Whitlock; Perry v Clissold; Oxford Meat Co Pty Ltd v McDonald (1963) 63 SR (NSW) 423; Spark v Whale Three Minute Car Wash (1970) 92 WN (NSW) 1087; Allen v Roughley; Wheeler v Baldwin (1934) 52 CLR, at pp 624, 632–633; Pollock and Maitland, p 46. Possession is protected against subsequent possession by a prima facie right of entry. The proposition that possession of itself gives rise to a right in the plaintiff to recover possession, if lost, is supported by principle. In losing possession, a plaintiff has lost the rights associated with possession, including the right to defend possession as well as an estate in the land. But nothing has upset the presumption that the plaintiff’s possession, and therefore his or her fee simple, was lawfully acquired and hence good against all the world. ‘Possession is prima facie evidence of seisin in fee simple’, Peaceable d Uncle v Watson (1811) 4 Taunt 16, at p 17 (128 ER 232, at p 232); Wheeler v Baldwin (1934) 52 CLR, at p 632; see also Doe d Stansbury v Arkwright (1833) 5 Car and P 575 (172 ER 1105); Denn d Tarzwell v  Barnard (1777) 2 Cowp 595 (98 ER 1259); Asher v Whitlock (1865) LR 1 QB 1, at p 6; Allen v Roughley (1955) 94 CLR, at p 108. Without evidence to the contrary, nothing has displaced the presumption arising from proof of the plaintiff’s possession that he or she had lawful title amounting to a fee simple. Thus, although a dispossessed plaintiff in ejectment must prove the strength of his or her own title and cannot rely on the weakness of the defendant’s title, the presumption of lawfulness arising from prior possession is positive evidence in that regard, cf note (a) in Allen v Rivington (1670) 2 Wms Saund, at p 111 (85 ER, at p 813). It follows from this, however, that a person’s title arising from prior possession can be defeated either by a defendant showing that he or she (or another person, in so far as it undermines the plaintiff’s claim) has a better, because older, claim to possession or by a defendant showing adverse possession against the person for the duration of a limitation period. 91

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In sum, English land law, in 1879 and now, conferred an estate in fee simple on a person in possession of land enforceable against all the world except a person with a better claim. Therefore, since the Meriam people became British subjects immediately on annexation, they would seem to have then acquired an estate in fee simple.

Commentary 2.12  Consistent with established common law orthodoxy, Toohey J suggested that prior

possessory titleholders, including Indigenous occupants, could defend their title against subsequent possessory titleholders. His Honour argued that the law presumes, from proof of possession, that a possessory holder is seised of a freehold and that this presumption is not displaced by any subsequent dispossession. This ‘fictional’ presumption forms the foundation of English common law. Hence, a prior possessor will hold a valid title against all but the true owner, or a valid adverse possession claim. It is this possessory title that can be alienated (Asher v Whitlock) or compensated where compulsorily acquired (Perry v Clissold). By parity of reasoning, Toohey J argued, inter alia, that when the Meriam people became British subjects upon colonisation, the law presumed, from the proof of their physical occupation of the land, that they were seised of a fee simple over that land. Thus, their subsequent physical dispossession could not displace the legal validity of their prior possessory title. According to Toohey J, this prior possessory title protected Indigenous inhabitants against the Crown’s assumption of ownership. Toohey J adopted a theory based upon the writing of K McNeil, who concluded that Indigenous inhabitants: … could prove that they had real property rights under their own customary laws prior to the Crown’s acquisition of sovereignty, and rely on the presumption that those rights continued; or … they could prove that they were in exclusive occupation (either severally, jointly, or collectively) of specific lands at the time of the acquisition, and claim title thereto by virtue of the common law that would have applied in the settlement from that moment on: Common Law Aboriginal Title, Clarendon Press, Oxford, 1989, p 241.

The conclusions of Toohey J were not, however, accepted by a majority of the High Court who refused to endorse the validity of Indigenous possessory title. Arguably, the refusal of the majority to uphold the primacy of Indigenous possessory title exemplifies a deeper reluctance to acknowledge the importance of difference within the common law framework. In the words of one commentator, the majority of the court in the Mabo decision: … could not comprehend or respect that these people, so different from themselves, had an ancient and valuable civilisation of their own with its own law, its own political economy, and its own permeating sense of spirituality. This blindness has endured and remains to this day the most fundamental barrier to developing a decolonised relationship with Indigenous peoples in Australia: P H Russell, Recognising Aboriginal Title: The Mabo Case and Indigenous Resistance to English-Settler Colonialism, UNSW Press, Sydney, 2006, pp 75–6.

In Jones v State of Queensland [2000] QSC 267 at [15], [16] Muir J followed Toohey J in Mabo. In that case, Indigenous claimants sought possessory title over large areas of land alleged to have been in the possession of their ancestors at and after European settlement. Muir J struck out the statement of claim because it failed to plead necessary material fact; however, his Honour held that the plaintiffs may have been able to articulate claims meeting the requisite tests. In the Canadian decision of Afton Band of Indians v Attorney General Nova Scotia (1978) 85 DLR (3rd) 454, a large Indian band sought title on the basis of adverse possession over land its members had occupied for over 100 years. The Supreme 92

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Court of Nova Scotia found that various members of the band had for well in excess of 60 years performed acts of adverse possession, and that title vested at some stage in individual members of the band as tenants in common. The court ultimately dismissed the claim, however, because, on the evidence it was unable to ascertain who those individuals were. The court further held that the band had no standing to sue because the relevant statute provided that only a ‘person’ could bring such an action, and a band of Indians is not a ‘person’. Subsequently, in Lawson v South Australian Minister for Water and the River Murray [No 2] [2014] NSWLEC 189, Biscoe J in the New South Wales Land and Environment court acknowledged the ‘recent, nascent recognition of possessory title’ by the courts in land title claims by Indigenous people. His Honour noted the weighty evidential difficulties associated with an adverse possession claim that ripened in 1848, but felt that the court should take account of the context of the Aboriginal land claim and the fact that it ‘includes the history of indigenous dispossession and disadvantage, including suppression and deprivation, in this country since European settlement’, and the fact that Aboriginal people ‘have suffered substantial injustice and loss consequent upon the deprivation of the loss of their land following the settlement of Australia’. Per Kirby P, Minister for Natural Resources v New South Wales Aboriginal Land Council (1987) 9 NSWLR 154  at 157. See also B Pohle, ‘Possessory Title in the Context of Aboriginal Claimants’ (1995) 11 Queensland University of Technology Law Journal 200.

2.13  Revision Questions 1. Why did Cockburn CJ in Asher v Whitlock conclude that there was no doubt that ‘a man has a right to devise that estate, which the law gives him against all the world but the true owner’? Explain what this means. 2. In Perry v Clissold the Privy Council makes it clear that compensation is payable to every person deprived of land resumed for public purposes. Should this include possessory title where the possessor is no longer in physical possession at the point when the land is compulsorily acquired? 3. What did Toohey J in Mabo v Queensland (No 2) mean when he referred to the old quote: ‘Possession is prima facie evidence of seisin in fee simple’? 4. If the Meriam people became British subjects upon annexation, do you think that their possession should constitute a ‘fictional’ fee simple title or does it simply constitute evidence of the continuing validity of their own, unique cultural association with the land?

The Finders Keepers Rule 2.14  It is important to distinguish between the enforceability issues that relate to

possessory title over land and those relevant to possessory title over goods. Physical possession of goods is primary evidence of title but it can often be difficult to establish physical possession, particularly where the goods are found either upon or within land. The basic rules relating to the enforceability of possessory title were outlined by W S Holdsworth, A History of English Law, 5th ed, Sweet & Maxwell, London, 1942, p 449: The law as thus developed can be grouped under the following three propositions: (i) The person in possession is treated as the owner save as against him who can show a better right to possession. As against all the world, except the man with the better right, he has all 93

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the powers of an owner. … (ii) [p 455] The owner out of possession has nothing save a right to recover his chattel from the possessor. … (iii) [p 458] The owner out of possession, who seeks to recover his possession, must show an absolute right; so that, if the defendant in possession can show that some third person has a better right than either, the plaintiff cannot recover.

The first proposition of Holdsworth is that where a person acquires physical possession of goods, they retain a title that is good against all the world except a person with a better right. In Armory v Delamirie (1722) 1 Strange 505; 93 ER 664; [1558–1774] All ER Rep 121 (the Chimney Sweep’s case), Sir John Pratt CJ (KB) ruled: 1. That the finder of a jewel, though he does not by such finding acquire an absolute property or ownership, yet he has such a property as will enable him to keep it against all but the rightful owner, and consequently may maintain trover.

The finders keepers rule is an established common law principle whereby the finder of lost property supersedes all claims except those of a prior possessor or the true owner. The law of finding lost chattels developed out of the common law trover action. Trover is now incorporated into the tort of conversion, but, originally, was the historical remedy to determine the rights of owners against finders. Trover was abolished in England in 1852 by the Common Law Procedure Act. In order to fully understand the finders keepers principle it is important to understand the concept of ‘lost’ property and to distinguish it from ‘mislaid’ property. Property can be abandoned by the owner, and when a finder locates it and takes possession, ‘lost’ property is found. Alternatively, property may be intentionally placed by the owner in a particular place with the intention to retake it at a subsequent stage. A finder in this instance can still say that the lost property is ‘found’. Property may be inadvertently lost by the owner and be ‘found’. Abandoned property returns to a state of nature or the ‘common mass’ and belongs to the first finder, occupier or taker. The finder of mislaid property will be entitled to the possession of that property against everyone but the true owner unless it is shown that the property is not lost but rather, that the owner cannot recall where it is placed. Hence, there is a distinction between ‘lost’ property and ‘mislaid’ property. Mislaid property occurs where the owner of the goods intentionally places those goods in a place and then forgets where they are. Lost property arises where the owner or other possessor has involuntarily parted with the property through inadvertence, negligence or carelessness. If mislaid property is found in a place where the general public is not ordinarily admitted, the interests of the owner must be protected and the occupier of the premises comes under a duty to care for the goods mislaid by those who are entitled to use the private or semiprivate place. If lost property is found, however, the finder will acquire a title and this has been the established law for centuries. As outlined in Armory v Delamirie (1722) 93 ER 664, the case involving the chimney sweeper’s boy who found a jewel in a chimney and was cheated by an avaricious goldsmith, the finder of a chattel acquires a title that enables the finder to keep it against all the world except its rightful owner, and to defend it against all others with every remedy that is available to a bailee. Where, however, the object has become a part of the realty, the owner of the realty should be awarded the object over the finder as he not only owns the realty but has possession prior to the finder. In Elwes v Brigg Gas Company (1886) 33 Ch D 562 (UK) the plaintiff leased a portion of his land to the Brigg Gas Company and, in the course of certain excavations by the Gas Company, they discovered, embedded six feet below the surface, an ancient prehistoric ship or boat hollowed out of a large oak tree that measured about 45 feet in length. The court decided that the plaintiff, as owner of the land at the time of the lease agreement, was entitled to the boat and this was the case even if the boat could be characterised as a chattel rather than 94

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a fixture. Where lost property is ‘found’, possession is title against the whole world except the real owner and the finder may acquire the value of the property. Significantly, Armory and the finding cases do not deal with the situation between the owner of the article after the finder or bailee has sued for and recovers the actual value of the article and a judgment is satisfied. Once the finder has recovered the actual value of the property from another party, the owner is barred from maintaining a separate action against that other party. For cases following the Armory principle see: British American Tobacco Ltd v Cowell (2002) 7 VR 524, 584 [168]; Murphy v Overton Investments Pty Ltd (2004) 216 CLR 388, 416 [74]. In Smith v Gould [2014] VSCA 138 at [54], Warren CJ, Osborn and Beach JJA held that fundamentally, the decision in Armory ‘discloses a permissible path of reasoning that may be engaged in in an appropriate case’. Where property is discovered on land that belongs to a third party, the finder may only acquire possession, and therefore title, in circumstances where it is clear that the owner of the land did not manifest a clear intention to control all goods discovered upon that land. The general principle established by the courts is that personal property that is found upon land rather than attached to that land may, where the land is open to public access, come into the possession of the finder, unless the owner of the land indicates a clear intention to control all objects existing on that land. This principle is founded upon the comments in Pollock and Wright’s ‘Essay on Possession in the Common Law’, p 41, which reads as follows: The possession of land carries with it in general, by our law, possession of everything which is attached to or under that land, and, in the absence of a better title elsewhere, the right to possess it also. And it makes no difference that the possessor is not aware of the thing’s existence … It is free to any one who requires a specific intention as part of a de facto possession to treat this as a positive rule of law. But it seems preferable to say that the legal possession rests on a real de facto possession constituted by the occupier’s general power and intent to exclude unauthorised interference.

See also Bridges v Hawkesworth (1851) 21 LJQB 75; South Staffordshire Water Company v Sharman [1896] 2 QB 44; Parker v British Airways Board [1982] 2 WLR 503 per  Donaldson  LJ at 514–15; Flack v Chairperson, National Crime Authority [1997] FCA 1331 at 1360 per Hill J who stated: ‘… where chattels have been embedded in the land, so as to form part of the land, the owner of the land has a right superior to a finder, and notwithstanding that the owner is unaware of the existence of the chattel embedded in the land’. See also Big Top Hereford Pty Ltd v Gavin Thomas as Trustee of the Bankrupt Estate of Douglas Keith Tyler [2006] NSWSC 1159, where Brereton J noted at [40] that a person who obtains possession of land upon which stock is agisted pursuant to a valid licence will not obtain lawful possession of that stock. These principles were discussed in some detail by the English Court of Appeal in Waverley Borough Council v Fletcher [1996] QB 334. The decision is extracted below.

  Waverley Borough Council v Fletcher  [1996] QB 334 Facts: A park to which members of the public had free access had been conveyed to the council as freehold owners subject to covenants that it would only be used for purposes ‘of or incidental to a pleasure or recreation ground for the use of the public’, and at all times as an open space or recreation ground within the meaning of the Open Spaces Act 1906 and the Public Health Acts respectively, and that it would not be used for any ‘sports, pastimes or recreations’ other 95

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than specified ball games, skating and pursuits ‘of a like nature.’ The council’s declared policy of prohibiting the use of metal detectors within the park was not the subject of a by-law but of notices, which at the material time had been torn down. The defendant was in the park but unaware of the council’s policy and used his metal detector to locate a medieval gold brooch buried in the ground. By excavating the soil to a depth of nine inches he recovered the brooch and reported the find. The brooch was returned to him at the conclusion of a coroner’s inquisition in which it was found not to be treasure trove. The defendant resisted the claim by the council to ownership of the brooch on the ground that, since he was lawfully on the property and they were not in actual occupation of the park, he, as finder, was entitled as against them to retain the brooch. The trial judge found in favour of the defendant and the council appealed. The Court of Appeal upheld the appeal, concluding that where an object was found unattached on land, the owner of the land had a better title to that object than the finder in circumstances where the owner had manifest such control over the land so as to indicate an intention to control anything found on it. Auld LJ: This appeal concerns the collision of two familiar notions of English law: ‘finders keepers’ and that an owner or lawful possessor of land owns all that is in or attached to it. More particularly, it raises two questions. (1) Who, as between an owner or lawful possessor of land and a finder of an article in or attached to the land, is entitled to the article? (2) How is the answer to (1) affected by, or applied, when the land is public open space? The appellant, Waverley Borough Council, is the freeholder of a park, Farnham Park, in Farnham, Surrey, to which it gave free access to the public for pleasure and recreational uses. It exercised control over the park by means of a ranger and his staff and by byelaws. On 28 August 1992 the respondent, Ian Fletcher, took a metal detector into the park to search for metal objects which might be of interest or value. He found, by use of the detector and some determined digging in hard ground, a mediaeval gold brooch about nine inches below the surface. He reported his find, and a coroner’s inquisition was held to determine whether it was treasure trove. The jury found that it was not, and the coroner returned the brooch to Mr Fletcher. The council then issued proceedings against Mr Fletcher, claiming a declaration that the brooch was its property and delivery up of it or damages. Mr Fletcher, by his defence, relied on the argument of ‘finders keepers’. He maintained that the council’s claim to ownership of the brooch required it to prove not only ownership, but also occupation, of the park. He admitted that it owned the park, but asserted that it did not occupy it because it was bound to allow the public to use it for pleasure and recreation. He said that he found the brooch whilst he was a lawful visitor there, and that, therefore, because the true owner of it had not been found, he was entitled, as finder, to keep it. The judge, Judge Fawcus, sitting as a judge of the High Court, found for Mr Fletcher. After reviewing the authorities he held that the rule that an owner of land owns everything in his land applies only to things that are naturally there, not to lost or abandoned objects; that the crucial factor is the control that he intends and is able to exercise over lawful visitors in relation to any objects that might be on or in the land; that Mr Fletcher was a lawful visitor and did not become a trespasser by digging and removing the brooch; but that it was not necessary to decide the question of control because the council had not established a paramount claim so as to displace the maxim ‘finders keepers’. On this appeal, Mr Croxford, for the council, argued that an owner or lawful possessor of land is entitled by virtue of that ownership or possession without more, as against a finder with no interest in the land, to any object, other than treasure trove, found in the land. He acknowledged that a different rule applies to unattached objects found on the land. Mr Munby, for Mr Fletcher, maintained that a common principle applies to objects in or unattached on land, namely, that to overcome a finder’s claim the owner or lawful possessor of land must demonstrate an intention to exercise control over the land and things found in 96

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or on it. By ‘control’ he meant a power and intent to ‘exclude unauthorised interference.’ That is effectively the English law concept of possession: see Holmes, The Common Law (1881), pp 220–221; Pollock and Wright, An Essay on Possession in the Common Law (1888), and for a modern judicial example of its expression in Parker v British Airways Board [1982] QB 1004, 1019E, per Eveleigh LJ. Mr Munby said that the application of the principle may differ evidentially according to whether the object in dispute is found in or unattached on the land. The starting point in considering those rival contentions is the firm principle established as long ago as 1722 in Armory v Delamirie (1722) 1 Str 505, that the finder of an object is entitled to possess it against all but the rightful owner. There was no claim in that case by the landowner; the dispute was between a chimney sweep’s boy who found a jewel and a jeweller to whom he had offered it for sale. The boy won. The same principle applies as between the owner or lawful possessor of land and the finder in relation to unattached objects on land unless the former has made plain his intention to control the land and anything that might be found on it. As Pollock and Wright put it in their Essay, at p 40, ‘The finder’s right starts from the absence of any de facto control at the moment of finding’: see Bridges v Hawkesworth (1851) 21 LJQB 75, in which Patteson and Wightman JJ, sitting as a Divisional Court on appeal from a county court, held that the finder of bank notes dropped by someone unknown accidentally on the floor of a shop had a better claim to them than the shop-owner who, until the finder drew his attention to them, did not know they were there. A more recent example is Parker’s case [1982] QB 1004 where the finder of a gold bracelet dropped by an unknown traveller in an airline company’s lounge at an airport was held to be entitled to it as against the airline company. In that case Donaldson LJ, giving the leading judgment, held, at p 1014, that for the landowner’s claim to prevail in such a case, he had to have both a right and a manifest intention to exercise control over anything which might be on his land. As to articles found in or attached to land, the foundation of the modern rule is Elwes v Brigg Gas Co (1886) 33 Ch D 562, in which Chitty J clearly regarded ownership or lawful possession of the land as determinative and the legal status of the object in dispute as immaterial. He held that a tenant for life as lessor of land was entitled against its lessee to ownership of a prehistoric boat embedded six feet below the surface in the demised land. In so holding, he said, at pp 568–569, that it was unnecessary to determine whether the boat was a mineral, part of the soil in which it was embedded or a chattel because: ‘he was in possession of the ground, not merely of the surface, but of everything that lay beneath the surface down to the centre of the earth, and consequently in possession of the boat. … The plaintiff then, being thus in possession of the chattel, it follows that the property in the chattel was vested in him. Obviously the right of the original owner could not be established; it had for centuries been lost or barred … The plaintiff, then, had a lawful possession, good against all the world, and therefore the property in the boat. In my opinion it makes no difference, in the circumstances, that the plaintiff was not aware of the existence of the boat.’ Earlier in his judgment, at p 567, he identified the breadth of that principle: In support of the contention that it ought to be deemed in law as part of the soil in which it was embedded, reference was made to the principle embodied in the maxim, ‘Quicquid plantatur,’ or as it is sometimes stated (see Broom’s Legal Maxims, 6th ed, p 376n and the judgment in Climie v Wood (1868) LR 3 Ex 257, 260) ‘fixatur solo, solo  cedit.’ This principle is an absolute rule of law, not depending on intention; for instance, if a man digs in the land of another, and permanently fixes in the soil stones or bricks, or the like, as the foundation of a house, the stones or bricks become the property of the owner of the soil, whatever may have been the intention of the person who so placed them there, and even against his declared intention that they should remain his property. Nor does it appear to me to be material that the things should 97

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have been placed there by the hand of man; it would seem to be sufficient if they have become permanently fixed in the soil by the operation of natural causes. As A L Goodhart concluded in his celebrated article, ‘Three Cases on Possession’ (1929) 3 CLJ 195, 204, the lessor ‘was the possessor of the boat because he was in possession of the ground,’ to which I add what is implicit in that conclusion, because the boat had become permanently fixed in the ground. Chitty J did not, therefore, need to consider Bridges v Hawkesworth, 21 LJQB 75 which was cited to him, and the quite different principle governing unattached articles on land. … Those words extended the Pollock and Wright principle about objects in or attached to land to unattached objects found on it, subject to an additional requirement of a manifest intention to exercise control: see Hannah v Peel [1945] KB 509, 519–520, per Birkett J; Grafstein v Holme and Freeman (1958) 12 DLR (2d) 727, 734, per LeBel JA; and Parker v British Airways Board [1982] QB 1004, 1014, 1018, per Donaldson LJ. To that extent they were obiter. They are also capable of being read as applying that additional requirement of ‘a manifest intention to exercise control’ to articles found in or attached to land. Mr Munby submitted that the latter qualification was a faithful application of the Pollock and Wright test, and he drew attention to the words in it ‘in general’ and ‘general power and intent.’ He suggested that their effect was simply to apply the concept of possession, namely, control and intent to control, to objects in, as well as to those unattached and on, land. Mr Croxford agreed that the test was one of possession. But he submitted that in this context that simply means that the possessor of land intends to possess it and whatever is in it, as distinct from any object which for a transitory period may be found on it. The test of possession, in its most abstract form, may have a constant meaning whether applied to objects in or unattached and on land. But it is clear from Pollock and Wright’s statement, citing Elwes v Brigg Gas  Co., 33 Ch D 562, that they regarded its application to objects in land to be free from the uncertainties inherent in disputes about entitlement to unattached objects found on land. Their proposition was that in practice possession of land should generally be taken as carrying with it an intent to possession of objects in or attached to it. To the extent that Lord Russell of Killowen CJ’s words in the Sharman case [1896] 2 QB 44 may be construed as ignoring that distinction, they go beyond Pollock and Wright’s test for objects in or attached to land and beyond what was necessary for the decision. That is certainly how A L Goodhart viewed it in his article in 3 CLJ 195, 206–207. He wrote, at p 206, referring to Pollock and Wright’s statement of the principle: It is important to note the … words ‘attached to or under that land.’ These are sufficient to cover the Sharman case, and, therefore, are the basis of the ratio decidendi, as the rings were in the mud and were also covered by a pool of water. They were not on the surface of the land, and were not visible to the casual passer-by. These facts must qualify Lord Russell’s final statement, in which he departs from the principle stated in the quotation from Pollock and Wright. Later, at p 207, he suggested that the authorities supported the following, among other, principles: A man possesses everything which is attached to or under the land which he possesses. As Chitty J said in the Elwes case, a man who is in possession of the ground is in possession ‘not merely of the surface, but of everything that lies beneath the surface down to the centre of the earth.’ It is true that in the Sharman case Lord Russell of Killowen described this rule as being merely a ‘presumption,’ but he did not give any reasons for such a limitation. … It is difficult to conceive of any set of circumstances under which this rule or presumption would not be applicable. A L Goodhart’s analysis of the Sharman case [1896] 2 QB 44 and of the principle has powerful judicial support. In City of London Corporation v Appleyard [1963] 1 WLR 982, a dispute about 98

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entitlement to bank notes found in a wall safe on a building site, McNair J commented on Lord Russell of Killowen CJ’s words, at p 987: ‘I do not regard this passage as being intended to qualify or extend the principle stated in Pollock and Wright, though in terms the words “upon or” used by the Chief Justice are wider than the words “attached to or under” appearing in Pollock and Wright.’ Donaldson LJ in his review of the authorities and statement of the principles that he derived from them in Parker v British Airways Board [1982] QB 1004, appears to have been of the same view. As to objects found in or attached to land, he said, at p 1010: In the interests of clearing the ground and identifying the problem, let me now turn to another situation in respect of which the law is reasonably clear. This is that of chattels which are attached to realty (land or buildings) when they are found. If the finder is not a wrongdoer, he may have some rights, but the occupier of the land or building will have a better title. The rationale of this rule is probably either that the chattel is to be treated as an integral part of the realty as against all but the true owner and so incapable of being lost or that the ‘finder’ has to do something to the realty in order to get at or detach the chattel and, if he is not thereby to become a trespasser, will have to justify his actions by reference to some form of licence from the occupier. In all likely circumstances that licence will give the occupier a superior right to that of the finder. Authority for this view of the law is to be found in South Staffordshire Water Co v Sharman [1896] 2 QB 44 … As to articles found unattached and on land, he said at p 1014: … I would accept Lord Russell of Killowen CJ’s statement of the general principle … provided that the occupier’s intention to exercise control over anything which might be on the premises was manifest. But it is impossible to go further and to hold that the mere right of an occupier to exercise such control is sufficient to give him rights in relation to lost property on his premises without overruling Bridges v Hawkesworth, 21 LJQB 75. Mr Hawkesworth undoubtedly had a right to exercise such control, but his defence failed. He then set out a number of ‘general principles or rules of law’ that he derived from the authorities including, at pp 1017–1018, the following two, in the context mainly of objects found in a building: 1. An occupier of land has rights superior to those of a finder over chattels in or attached to that land and an occupier of a building has similar rights in respect of chattels attached to that building, whether in either case the occupier is aware of the presence of the chattel. 2. An occupier of a building has rights superior to those of a finder over chattels upon or in, but not attached to, that building if, but only if, before the chattel is found, he has manifested an intention to exercise control over the building and the things which may be upon it or in it. In my view, the two main principles established by the authorities, and for good practical reasons, are as stated by Donaldson LJ in Parker v British Airways Board [1982] QB 1004. I venture to restate them with particular reference to objects found on or in land, for he was concerned primarily with an object found in a building. (1) Where an article is found in or attached to land, as between the owner or lawful possessor of the land and the finder of the article, the owner or lawful possessor of the land has the better title. (2) Where an article is found unattached on land, as between the two, the owner or lawful possessor of the land has a better title only if he exercised such manifest control over the land as to indicate an intention to control the land and anything that might be found on it. I turn now to the judgment of the judge in which he sought to qualify the first of those principles by narrowing the ratio of the Elwes case, 33 Ch D 562 by reference to the particular proprietary 99

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interest of the lessor as against the lessee and distinguishing between things naturally in the ground and those put there. He said: It seems to me that this case decided two matters. Firstly, that a person in possession of land as an inheritance under a settlement prima facie has the property and anything on or under that land. Secondly, that the defendant, whose only right to be on the land was under the terms of the lease, could not establish any express or implied licence to remove anything that would not be contemplated as being found during excavation of the land. I say ‘on or under’ because it could not in common sense have made any difference to the plaintiff’s title whether the boat was resting on the top or six feet under. The general rule that an owner of land owns everything that is under his land right up to the centre of the earth, from a common sense point of view, would be applicable to things that are naturally there. It would, for example, include minerals, and any objects which in former days might have become attached to the surface of the land so as to form part of the realty, but which over the years, perhaps centuries, have become covered. But why in the case of lost or abandoned chattels there should be any difference as to who has the better possessory claim dependent merely upon whether the chattel is above or below ground (or on a window ledge as opposed to within a crevice therein), I wholly fail to understand, as I have already commented in relation to the boat in Elwes v Brigg Gas Co (1886) 33 Ch D 562. I can find nothing in the authorities to justify the judge’s restriction of the ratio in the Elwes case to things that are naturally in the ground, as distinct from lost or abandoned articles. It is true that in Parker v British Airways Board [1982] QB 1004, 1010G, Donaldson LJ categorised it as a dispute between a tenant for life of the realty and his lessee rather than a dispute between landowner and finder, but, in the first of his propositions that I have set out, he clearly accepted the general principle enunciated by Chitty J that lawful possession of land includes possession of everything in the land, naturally there or otherwise. Whatever the correct categorisation of the Elwes case, Chitty J clearly regarded the nature of the article or matter in dispute as immaterial. In any event, it is far too late now for it to be suggested that his general proposition should be modified as suggested by the judge. The second question is whether and, if so, in what circumstances a different rule applies to land which is a public open space. The judge found that the council had neither the manifest intent nor the ability to prevent metal detecting in the park and the associated digging and removal of objects. He contrasted the circumstances in the cases of Elwes, 33 Ch D 562, Sharman [1896] 2 QB 44 and Webb [1988] IR 353 by suggesting as the ratio in each case that the unsuccessful finder was only allowed on the land for a limited purpose which did not include the taking of the article in question. The undisputed facts here were that the council’s ownership of the park was subject to two covenants in the conveyance under which it derived title: (1) that it was to be used only for purposes ‘of or incidental to a pleasure or recreation ground for the use of the public;’ (2) that it was not to be used for ‘horse or dog racing or for any other sports, pastimes or recreations except the playing of cricket, hockey, netball, football, golf and skating and other games or sports of a like nature’ and that the council would ‘at all times use the … park as an open space within the meaning of the Open Spaces Act 1906 or a recreation ground within the meaning of the Public Health Acts.’ Section 9(b) of the Open Spaces Act 1906 empowered the council to undertake the ‘management and control’ of the park. Section 10 empowered it (a) to ‘hold and administer’ the park ‘with a view to the enjoyment thereof by the public as an open space within the meaning of this Act and under proper control and regulation,’ and (b) to ‘maintain and keep’ it ‘in a good and decent state.’ Section 10 also empowered it to enclose the park and to do various works 100

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of improvement to it for the benefit of the public. Section 15 empowered it to make byelaws subject to the approval of the Home Office for the ‘regulation’ of the park, of the days and times of admission and for the ‘preservation of order and prevention of nuisances.’ As to the Public Health Acts, section 164 of the Public Health Act 1875 (38 & 39 Vict c 55) and section 76 of the Public Health Acts Amendment Act 1907 give local authorities wide powers to provide and equip places of public recreation. But neither they nor the many other statutory provisions on the subject (see the helpful summary in Halsbury’s Statutes, 4th ed reissue, vol 35 (1993), p 11) assist on the question whether metal detecting is a recreation for this purpose. Members of the public have access to the park at all times, save for part of it given over to a golf course and the ranger’s house and garden. The council employed a ranger who, with other part-time voluntary rangers, regularly patrolled and managed the maintenance of the park and supervised the use of it by the public. The council’s declared policy was not to permit the use of metal detectors in the park. But, though it had made approved byelaws forbidding certain activities, it had not been able to persuade the Home Office to approve a byelaw prohibiting the use of metal detectors. There had been notices prohibiting the use of metal detectors in the park, but they had been pulled down, and there was none at the material time. Despite the absence of such notices, the ranger had on two or three occasions stopped people using them. Mr Fletcher was unaware of the council’s policy and had regularly used his metal detector there. The judge held, on those facts: first, that metal detecting was a ‘recreation’ which the council was obliged to permit under the terms on which it held the land; second, that ‘digging in response to the metal detector’s signal, provided it is within reasonable bounds, is incidental to such recreational activity;’ third, that the council had not made plain to Mr Fletcher its policy to prohibit metal detecting; and, fourth, that, in any event, in the absence of any applicable byelaws, the council had no authority to stop him. In my view, the judge’s reasoning that metal detecting was a recreation within the terms under which the council held the land and that, therefore, it included a right to excavate and carry away objects found, is strained. Whilst some sports or recreations, such as golf or cricket, may involve some disturbance of the soil, metal detecting is not, in my view, ‘of a like nature’ to the ‘sports, pastimes or recreations’ mentioned in the second of the covenants to which I have referred. Moreover, the very fact that the activity is inherently invasive is against it being recreational in this context. Even if I am wrong about that, it cannot entitle members of the public to excavate the soil, whether ‘within reasonable bounds’ or not. … Accordingly, in my view, neither Mr Fletcher’s metal detecting nor his digging nor his removal of the brooch was within any of the purposes for which the council was permitted to, or did, allow the public use of the park. The judge declined to rule on a submission made on behalf of Mr Fletcher, and repeated on this appeal, that the council was not the occupier of the park and for that reason could not assert sufficient control over it to entitle it to things in it. However, as I have said, he ruled that the council had no authority to prevent Mr Fletcher from metal detecting, digging and removing objects in the park. He appears to have taken the view that the only way in which the council could enforce its power and duty of management and control was by prosecution for infringement of byelaws or by recourse to the general criminal law. He said: There are no relevant byelaws and it seems to me that even had the defendant been aware of the council’s desire to prevent metal detecting, which he was not, he would have been entitled to say, ‘You cannot stop me. What is your authority for trying to?’ The basis of that ruling, and of Mr Munby’s submission to like effect before us, was a decision of Finnemore J in Hall v Beckenham Corporation [1949] 1 KB 716, which concerned an action of nuisance against a local authority in respect of noise from the flying of model aircraft in a recreation ground owned, managed and controlled by the authority. Finnemore J found for the local authority holding, in reliance on a rating case, that it was not the occupier of the recreation 101

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ground, but merely its custodian or trustee for the public; that its only power to control activities in it was by way of byelaws or enforcement of the general criminal law; and that, as the flying of model aircraft did not contravene either, it had no power to abate the alleged nuisance. Mr Munby submitted in reliance on Hall’s case that the council did not occupy the park; and that it had no right qua owner to regulate its use by a member of the public, who could do what he liked there unless he breached a byelaw or the general criminal law. In my view, the council, whether as owner, possessor or occupier of the park, was a trustee for the general public in the exercise of its powers and duties of management and control under the Act of 1906 and the terms under which it held the land. As such it had a superior right to the brooch over that of Mr Fletcher who, in the absence of a licence from the council, had no entitlement to dig and remove it. In my view, the council was not restricted in its enforcement of that right to the mechanisms of prosecution under byelaws or the general criminal law. The  purpose of a byelaw is simply to provide a local authority with a convenient criminal sanction in the enforcement of its public powers and duties. The absence of a byelaw on any matter does not mean that the council has no corresponding civil right, in this instance in its management and control of its land. Hall’s case was quite different. The question there was whether a local authority was liable in nuisance for noise caused by members of the public using it for a recreational purpose which the authority did not claim an entitlement to control. Here the council sought, in accordance with its power and duty of management and control of the park on behalf of the general public, to protect its property. If and to the extent that Finnemore J’s judgment could be said to suggest that such power and duty can be enforced only through the medium of byelaws or the general criminal law, my view is that it went too far. Accordingly, I can see no basis for not applying the general rule that an owner or lawful possessor of land has a better title to an object found in or attached to his land than the finder, or for modifying it in some way to produce a different result in the circumstances of this case. Mr Fletcher did not derive a superior right to the brooch simply because he was entitled as a member of the public to engage in recreational pursuits in the park. Metal detecting was not a recreation of the sort permitted under the terms under which the council held the land on behalf of the general public. In any event, digging and removal of property in the land were not such a permitted use, and were acts of trespass. And the council was entitled to exercise its civil remedy for protection of its property regardless of the absence of any applicable byelaw. As to the judge’s third point, the absence of a manifest intention to control, it is, for the reasons I have given in the earlier part of this judgment, not the test for objects found in or attached to land; and, for the reasons I have just given, there is no reason for its application to the circumstances of this case. If there were, given the council’s statutory powers and duties, the terms under which it holds and controls and manages the park and the way in which it exercises that control and management, I would regard it as clearly having the requisite intent and ability to control. For those reasons I would allow the appeal.

Commentary 2.15  The conclusions of Auld LJ in Waverley Borough Council v Fletcher make it clear

that it will only be where the object is found on the land, rather than in or attached to land, that a finder may claim possession. Further, where an object is found on the land, the possession claimed by the finder may be defeated by the title of the landowner if the landowner has manifested an intention to exercise full control over the land and anything found on it. On the facts, the Court of Appeal concluded that neither Mr Fletcher’s metal detecting nor his digging or removal of the brooch was within any of the purposes for

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which the council was permitted to, or did, allow as authorised public park activities. Further, the council, whether as owner, possessor, or occupier of the park, was a trustee for the general public in the exercise of its powers and duties of management and control. In this capacity, the council retained a superior right to the brooch over that of Mr Fletcher who, in the absence of a licence from the council, had no entitlement to dig and remove the brooch as such activity was unauthorised. Consequently, Mr Fletcher did not derive a superior right to the brooch simply because he was entitled as a member of the public to engage in recreational pursuits in the park. During the course of his judgment, Auld LJ made it clear that two general principles regulate this area: 1. Where an article is found in or attached to land, as between the owner or lawful possessor of the land and the finder of the article, the owner or lawful possessor of the land has the better title; and 2. Where an article is found unattached on land, as between the two, the owner or lawful possessor of the land has a better title only if he or she exercised such manifest control over the land as to indicate an intention to control the land and anything that might be found on it. These presumptions have been applied to Australian cases. In Stockland (Constructors Pty Ltd) v Allan Richard Carriage (2002) 56 NSWLR 636, Bergin J in the New South Wales Supreme Court examined a statutory provision that purported to exclude the common law presumption that an object in the land is deemed to belong to the land owner. Section 33D(2) of the Wildlife Act 1976 provided that the owner of the land ‘shall not be deemed to have had possession of a relic that was not originally real property only by reason of the fact that it was in or on the land’. His Honour concluded at [50] that a distinction needed to be drawn between relics that were made from part of the land, such as the rocks that were, on the facts of the case, made into cutting implements, and a relic that was itself originally real property or part of the land, such as a cave painting. Bergin J held that the latter type of relic came within the application of s 33D(2) because this could be treated as ‘originally real property’ as the intention behind the drafters of the act to refer to relics that were real property, rather than real property, such as part of the rock, that was subsequently used to create relics. As such, the common law principle was not excluded from relics made from rock that were found in the ground.

Bailment: Consensual Acquisition of Possession 2.16  A possessor who acquires possession of goods with the express consent of the owner

will generally acquire a possessory title that is regulated by either a contractual relationship or the tortious principle of bailment. Where an owner of personal property delivers that property to a possessor for a limited duration of time, the possessor will acquire bailment in the property. Bailment is a tortious principle that only arises over personal property and gives the bailee (possessor/transferee) a legally enforceable right to retain the goods and the bailor (owner/transferor) a legally enforceable right to regain possession. The possession of the bailee is and must be distinguished from the possession of the owner and that of the thief by the fact that the bailee makes no accompanying claim to or assertion of dominium, but accepts a continuing interest of a previous owner or possessor.3 The bailee

3. See the discussion by A Erh-Soon Tay, ‘Essence of Bailment: Contract, Agreement or Possession’ (1965) 5 Sydney Law Review 239. 103

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must exercise a reasonable standard of care in looking after the goods. Bailment can arise where the owner of goods delivers possession to a third party, or where the possessor of goods delivers them to a third party. Bailment and the duties of the bailee arise from the bailee’s entrance into a relation to a thing, rather than his relation to a bailor. Entering into the relation with the thing must be intended although knowledge and consent may be implied from the situation. Once established, and the bailment relationship has been entered into, consent cannot be withdrawn on the pretence of repudiating the bailment. A bailment will only be determined by any act of the bailee that is wholly repugnant to the holding as bailee, and where this occurs the bailor acquires an immediate right to possession: Donald v Suckling (1866) LR 1 QB 585 at 615. The decision of the English Court of Appeal in The Winkfield [1902] P 42 provides a good illustration of the operation of bailment. On the facts, two ships, The Winkfield and The  Mexican, collided off the Cape of Good Hope resulting in the loss of mail. The Postmaster-General (PMG) sued the owners of The Winkfield in negligence for the loss of mail. The PMG was merely the bailee and carrier of the mail; the actual items lost were the property of other persons. The PMG was found not to be contractually liable to the bailors for the loss of their mail and it was argued that, as the bailee did not have to account to the bailor for the loss of the goods, the bailee could not sue for damages under the bill of lading. The English Court of Appeal rejected this claim and followed Armory v Delamirie in concluding that the PMG had a good title against every stranger and that, consequently, he was entitled to sue for the full amount of the value of the goods under the bill of lading and to account for that value to his bailor. This decision makes it clear that, during the term of a bailment, a bailee retains possessory title in the goods and this title will enable the bailee to bring an action to recover the value of the chattels. As outlined in The Winkfield by Collins MR at 60: ‘As between bailee and stranger possession gives title — that is not a limited interest but absolute and complete ownership, and he is entitled to receive back a complete equivalent for the whole loss or deterioration of the thing itself’. This has also been summarised by N E Palmer, Bailment, 2nd ed, Sweet & Maxwell, London, 1991, p 308: At common law, a bailee’s possession entitles him to exercise any of the remedies to which possession is a prerequisite, or to which it is one of several grounds of potential qualification. His lack of full ownership does not preclude him, moreover, from recovering the full value of the chattel or the full cost of its impairment; the rule in such circumstances is that ‘as against a wrongdoer, possession is title’. Thus, if the goods are wrongfully taken from him or are damaged while in his possession, he may sue the wrongdoer in trespass, conversion or detinue just as if he were the bailor under a revocable bailment or an owner whose goods had never, before the wrongdoing, left his possession.

See also Coggs v Bernard (1703) 2 Ld Raym 909; 92 ER 107; [1558–1774] All ER Rep 1; HSBC Rail (UK) Ltd v Network Rail Infrastructure Ltd [2006] 1 All ER (Comm) 345 at [29] per L J Longmore; and Clambake Pty Ltd v Tipperary Projects Pty Ltd (No 3) [2009] WASC 52 at 218. In modern times, the terms of a bailment within a contract should be checked because the contract may modify the consequences that would otherwise follow if there were no agreement and common law bailment applied. As noted by Swinfen Eady MR in Whiteley Ltd v Hilt [1918] 2 KB 808 at 819: A bailment may be determined by doing any act entirely inconsistent with the terms of bailment: … but it does not follow from that that if the bailee has any further interest in 104

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the chattel of a proprietary kind he forfeits that interest by any dealing with the chattel not warranted by the terms of the bailment. There is no foundation for such a notion …

The right to claim in conversion is a right that survives the passing of the Personal Property Securities Act 2010 (Cth) (PPSA) and therefore may be a useful resource in circumstances where an owner loses secured goods under its provisions. Further, the PPSA allows a person who is not the owner of an asset to grant a security interest over that asset. Under ss 19(1) and 20(1)(a) of the PPSA, a security interest will only be enforceable against a grantor or a third party if, inter alia, the security interest is ‘attached’ to the collateral. Under section 19(2), a security interest can only attach to collateral if the grantor ‘has rights in the collateral, or has the power to transfer rights in the collateral to the secured party’. One interesting issue is whether the possessor of personal property has ‘rights in the collateral’ and is therefore capable of granting a security interest over that property pursuant to the PPSA. The PPSA does not define the expression ‘rights in the collateral’. Section 19(5) sets out, however, that the ‘grantor has rights in goods that are leased or bailed to the grantor under a PPS lease, consigned to the grantor, or sold to the grantor under a conditional sale agreement (including an agreement to sell subject to retention of title) when the grantor obtains possession of the goods’. In ‘The Scope of Rights in the Collateral in s 19(2) of the PPSA: Can Bare Possession Support Attachment of a Security Interest?’, the author raises this issue and makes the following conclusions: 1. A person in possession of collateral can grant a security interest over the collateral back to the owner in the circumstances described in section 19(5). 2. A person can only grant a security interest over collateral if either: a) the person has an ownership interest in the collateral; or b) the person is treated by the PPSA as if it were the owner of the collateral, by virtue of being the grantor of another security interest over it. 3. A person who is in possession of property, but who does not have an ownership interest in it and cannot rely on proposition 2, can only grant a security interest over the rights that flow from the fact of their possession, not over the property itself. It is their ownership of those possessory rights, not the fact that they are in possession of the underlying asset, that enables the security interest to attach (to those rights, not to the asset as a whole).4

Possession of Goods: The Jus Tertii Defence 2.17  The holder of a possessory title over goods may raise the jus tertii defence where a

prior possessory titleholder seeks possession of those goods. This defence may be raised to say that a defendant who is out of possession cannot defeat an actual possessor if the actual possessor acquired possession from a third party who has a better right. Literally, jus tertii means the right of a third person. The orthodox application of the jus tertii principle was outlined by Henchman J in Henry Berry & Co Pty Limited v Rushton [1937] SR (Qld) 109, who said at 119: When the plaintiff was not in actual possession, but relies upon his right to possession, he must recover on the strength of his title, and the defendant may, under a plea of not guilty or not possessed, show that the plaintiff has no right to immediate possession because that right is in some other person.

4. B Whittaker, ‘The Scope of Rights in the Collateral in s 19(2) of the PPSA — Can Bare Possession Support Attachment of a Security Interest’ (2011) 34(2) New South Wales Law Journal 524 at 545. 105

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In evaluating the availability of a jus tertii defence, it is important to assess the conduct of the defendant and to consider whether there is anything in that conduct that justifies the preclusion of the defence and, in effect, prevents the defendant from defeating the actual possessory title of the plaintiff on the basis of the better title of a third party. In Esanda v Gibbons [1999] NSWSC 1094, Austin J at [24] held that it was arguable that the principle underlying the jus tertii cases may, in fact, be a broad application of equitable estoppel principles. It is not possible to claim a jus tertii as a defence in an action for possession of land and defeat the claim of the prior possessor. As noted by the court in Armory v Delamirie (1722) 1 Strange 505: ‘In a pure system of relativity of titles there can be no room for a jus tertii’. Consider also the views of P S Atiyah, ‘A Re-Examination of the Jus Tertii in Conversion’ (1955) 18 MLR 97 at 102 who concluded that the jus tertii defence is: … best redefined as traverses of the possessory title of the plaintiff, which title may have been destroyed or extinguished in the manner in which his factual possession was lost. Loss of factual possession of itself has no impact on the strength and resilience of the defendant’s title; even if it is clear that there is a third party somewhere with a superior right, that jus tertii is of no moment in the possessory battle between plaintiff and defendant.

A possessor of land must show that his or her right is superior to the right of the person claiming possession. This can be proven where the person can establish documentary title or a prior possessory claim. A third party’s right to possession will be relevant in such a dispute only if it demonstrates that the claimant has no right to possess the land. Thus, in a land dispute, it is not sufficient to argue that a third party has a stronger claim than the holder or that the holder does not have the best title to the land. It must be established that the title of the person seeking to oust the holder is itself a superior title. Authority for this proposition stems from the decision in Asher v Whitlock (1865) LR 1 QB 1, where the defence was not raised by the defendant and was impliedly rejected by Mellor J. Subsequent courts have concluded that the court’s emphasis on the strength and enforceability of a prior possessory title indicated that the jus tertii defence was not available for possessory title disputes over land. Subsequently, in Perry v Clissold [1907] AC 73, the Privy Council explicitly rejected the use of jus tertii, noting that the jus tertii defence was not available to the Crown to argue that an owner of land has a better title. If it was available, it would effectively ‘defeat the rights of prior possessory holders against actual possessors’ and this is contrary to the common law orthodoxy. The defence may, however, be raised in possessory title disputes that relate to personal property but only if the possessory titleholder has committed no civil or criminal wrong. Jus tertii is not available in conversion where the defendant has derived the goods from the plaintiff: see, for example, Jeffries v The Great Western Railway Co [1856] EngR 81; 119 ER 680; Russell v Wilson [1923] HCA 60; 33 CLR 538 at 547 per Isaacs and Rich JJ; The Anderson Group Pty Ltd v Tynan Motors Pty Ltd (2006) 65 NSWLR 400 at 413 per Young CJ in Eq. Further, a bailee is not entitled to dispute the bailor’s title and therefore cannot plead the jus tertii against the bailor: Butler v Hobson [1838] EngR 401; 4 Bing (NC) 290; 132 ER 800; Leake v Loveday [1842] EngR 1063; 4 Man & G 972; 133 ER 399; Woods v Mason Bros Ltd (1892) 8 WN (NSW) 114. This qualification is, itself, subject to three exceptions. As outlined by Herron J in Edwards v Amos (1945) 62 WN (NSW) 204 at 206: … the defendant, although a bailee, can plead the jus tertii in three cases, (a) where he defends the action on behalf of and by the authority of the true owner, (b) where he committed the act 106

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of conversion complained of on the authority of the true owner, and (c) where he has already made satisfaction to the true owner by returning the property to him.

The effect of a denial of jus tertii is to permit adjudication of disputes as to the better titleholder between the two contesting parties without any reference to other potential rights holders. Such rights holders are, instead, required to bring their own action to establish their greater right. Consider the following example as an illustration of the operation of the jus tertii defence. See also C D Baker, ‘The Jus Tertii: A Restatement’ (1990) 16(1) University of Queensland Law Journal 46. LEGAL PROBLEM A leases equipment from LP Pty Ltd for two years. A acquires possessory title for the duration of the lease contract and LP Pty Ltd is required to provide full and adequate notification of any intention to reclaim the property pursuant to a breach of contract. If  A goes into bankruptcy and the trustee in bankruptcy claims the possessory title over the equipment for the purpose of distributing assets to A’s creditors, LP Pty Ltd may claim a superior proprietary title and reclaim the property. However, in such a scenario, if LP Pty Ltd does not give full and adequate notification of its intention to reacquire the property in accordance with their contractual obligations, the trustee T may raise a jus tertii defence against the title claimed by LP Pty Ltd arguing that the strongest title lies with A, because A is entitled to retain possession until LP Pty Ltd complies with the notification requirements set out in the original lease contract.

It has been suggested that the jus tertii defence is not available to support the statutory possession that police acquire when seizing property suspected of being the proceeds of, or involved in the commission of, a crime. Consider the following case.

  Costello v Chief Constable of Derbyshire Constabulary  [2001] 1 WLR 1437 Facts: A police officer seized and detained from the plaintiff, Costello, a car bearing telltale signs of theft, acting under statutory powers. There had been a number of registered keepers of the car before it had been registered with Costello. It was never made clear whether Costello himself was suspected of stealing or handling stolen goods. The police could not trace the third party who was the true owner; all that could be said was that one of the prior registered keepers was probably the true owner. When it was clear that no criminal proceedings would be brought against Costello and that the car could not immediately be restored to its true owner, the police’s legal powers to detain the car ceased. Costello then brought an action to assert his prior possession and recover his car from the police together with damages for wrongful detention. The police resisted the claim and raised jus tertii to state that a third party, the owner, held a better title. The Court of Appeal was invited to apply a jus tertii defence to the possessory title held by the police. This was rejected. Lightman J, in giving the reasons of the court, contributed to the jurisprudence relating to personal property and jus tertii. Lightman J: Since the claimant in this case was in possession of the car when it was seized by the police, it might be expected to follow from the principles which I have stated that when the right of the police to detain it expired, the police were in this case obliged to return the car to the claimant. But the police seek to establish and rely on two exceptions or qualifications to these principles, to each of which I must refer in turn. 107

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Possession of stolen goods The first suggested exception or qualification is that no possessory (or other) title in stolen property vests in the thief or a subsequent receiver of stolen property and that accordingly on seizure of stolen property the police become possessory owners and have no obligation to restore the stolen property to the person from whom they seized it: their obligation is limited to restoring to the true owner if ascertained. The question has long been regarded as open whether there is such an exception or qualification and it continues to be raised eg in Winfield & Jolowicz on Tort 10th ed p 603 and Salmond & Heuston The Law of Torts 21st ed pp 109–110. Indeed there is a note of a decision of Milmo J in Solomon v Metropolitan Police Commissioner [1982] Crim LR 606 (‘Solomon’) that public policy and the doctrine of ‘ex turpi culpa non oritur actio’ preclude a thief from recovery. This is the view adopted by Feldman on Entry, Search and Seizure para 11.41. The decision in Webb is distinguishable on the ground that the purchaser of the drugs (or other person who made payment for them) in that case clearly intended the claimant to obtain full possession (and accordingly full possessory rights) to the monies paid over. There could be no suggestion that the proceeds were stolen and that by reason of this fact some lesser form of possession or possessory right arose. The authorities relied on by Feldman and the police in this case are twofold, namely Buckley v Gross (1863) 3B & S556 (‘Buckley’) and Field v Sullivan [1923] VLR 70 (‘Field’). In Buckley the issue related to the ownership of certain tallow. The tallow had been kept at warehouses which caught fire; it melted and flowed down the sewers into the river where part of it was collected by a man with no right to it; and he sold it to the claimant. The police stopped the claimant and took him before a magistrate. The magistrate discharged the claimant. Under section 29 of the Metropolitan Police Act 2&3 Vict c 71 (‘the 1839 Act’) the magistrate had power, where the real owner was known, to make an order for the detention and subsequent delivery of goods ‘charged to be stolen or fraudulently obtained’ to the rightful owner, and where the owner was unknown to order delivery to the receiver of the Metropolitan Police Force who was authorised, in the absence of a claim made by the real owner within 12 months, to sell them. Pursuant to these statutory provisions the magistrate made an order for the detention of the goods. The tallow became a nuisance and the police sold the tallow to the defendant before the 12 month period expired. The claimant then sued the defendant to recover it. Blackburn J at the trial directed a verdict for the defendant with leave to the claimant to move to enter judgment if the Court of Queen’s Bench should be of the opinion that he could maintain his action. The court held that he could not. Cockburn CJ said: Under these circumstances it appears to me plain that, by virtue of the authority vested in him by the statute, an order was made by the justice, within the scope of his authority and jurisdiction, with respect to dealing with this tallow, and whether the police were or were not warranted in selling it within twelve months is immaterial. The plaintiff, who had nothing but bare naked possession (which would have been sufficient against a wrong doer) had it taken out of him by virtue of this enactment. As against the plaintiff, therefore, the defendant derives title, not from a wrong doer, but from a person selling under authority of the justice, whether rightly or not is of no consequence. I wholly disagree with the doctrine of the plaintiff’s counsel, that if the policeman did anything ultra vires, that would revest the possession of this tallow in the plaintiff. He had no title beyond what mere possession gave, and, so soon as the goods were taken from him by force of law, there was a break in the chain of that possession. Crompton J said: This action must be founded on possession; here the possession was divested out of the plaintiff, and he cannot revert to a right of property to re-establish it. I agree with my Lord Chief Justice that, where possession is lawfully divested out of a man, and the 108

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property is ultimately converted by a person who does not claim through an original wrong doer, the party whose possession was so divested had no property at the time of the conversion. Here, in my mind, the plaintiff’s possession was gone. The goods were properly taken from him … Blackburn J said: I do not wish to question the doctrine laid down in several cases, that possession of personal property is sufficient title against a wrong doer; nor that it is no answer to the plaintiff in such a case to say that there is a third person who could lawfully take the chattel from him; and I do not know that it makes any difference whether the goods had been feloniously taken or not. But, assuming that to be the law, the plaintiff has not brought himself within it. … I draw the inference of fact that the justice was satisfied that this tallow had come from the warehouses, and I hold that, as matter of law, the police were bound to keep it for the true owner, because they had ascertained that there was a true owner, and who he was. Their possession was the possession of the true owner and not of the wrong doer, whose possession was terminated by their taking possession. It is therefore not necessary to consider whether the sale of the tallow to the defendants by the police was right or wrong. If wrong, the true owner may complain against them; if not, no one else can, but at all events, not the plaintiff, who was himself a wrong doer. All three judgments support the proposition that a thief obtains a good possessory title as against a wrong-doer against him, but that, if possession is lawfully divested from him and vested in another, his prior possession will not avail him to recover possession. Cockburn CJ held that the lawful divesting of the claimant and vesting in the defendant in that case was effected by the sale by the police to the defendant in exercise of the statutory power of sale vested in them by the order of the magistrate. Blackburn J decided that the police held the tallow for and on behalf of the warehousemen. Crompton J may have taken (and according to the report of this case in 32 LJQB 129 did take) the view that irrespective of any order of the magistrate the vesting by the police of possession in the defendant was sufficient to divest the claimant of possession. Later authorities to which I will refer attach critical importance to  the existence of the magistrate’s order in a contest such as existed between the claimant and defendant in Buckley. It should be said that the variations in the reports of the judgments in this case (referred to in the judgment of Macfarlan J in Field at p 83) raise questions as to the reliability of various reports. I have selected the report in 36 B&S 556 because it is the report used and quoted by the Court of Appeal in the later case of Irving v National Provincial Bank [1962] 2 QB 73 (‘Irving’) to which I will subsequently refer. The provisions of the 1839 Act fell for consideration again in the case of The Queen v D’Eyncourt (1888) 21 QBD 109 (‘D’Eyncourt’). The question arose whether the magistrate had jurisdiction under that Act to direct the delivery of goods which were seized by the police but were not the subject of any charge to the person (a Mary Ryan) from whom they were seized. In that case some £108 was seized as money obtained by false pretences, but the charges were confined to £8 alone. The magistrate directed that the balance of £100 be delivered up to her. The court quashed the decision holding that the Act conferred no jurisdiction to make any order save in respect of goods the subject of a charge. Wills J however added: As to £8 odd, the defendant appears to have admitted that the sums of which it consisted were property to be returned to the [identified] persons from whom she concedes that she had received them. As to the rest of the sum [of £100 odd] now in the hands of the police authorities, it seems clear, upon the facts stated to us, that it ought to be given to Mary Ryan: and it is clear that the possession she once had would give her the right to recover the money from anyone who could not show a better title. This would be

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so, even if the money had been obtained by false pretences from persons who with knowledge of the facts advisedly abstained from making any claim or if nothing could be shown as to whom was really entitled. The possessory right may perhaps go further. It is not necessary to express any opinion upon this point. We have no reason to suppose that the police authorities will not do what is right in the matter. The judgments in Buckley and D’Eyncourt were considered by the Supreme Court of Victoria in the case of Field. In that case the claimant claimed in return of goods seized by the police believing them to be stolen. The theft was not established and the claimant as the party in possession at the time of the seizure was held entitled to their return. Macfarlan J (with whom Cullen J agreed) said (at p 84) as follows: If A is in possession of goods, he is prima facie in lawful possession of them and prima facie has the right to that possession; in the absence of any evidence to the contrary, in any proceedings that possession is proof of ownership; but that possession may be divested out of him lawfully or unlawfully. If unlawfully, his right of possession remains. As against the person who unlawfully deprived him of possession (B) or those claiming through him, A’s possession (even if wrongful) up to the time of seizure, is sufficient evidence to establish his right to possession: nor can those persons set up that the goods were A’s possession, but were really the property of X, though, of course, if B took possession on behalf of and with the authority of X, who is shown to be the true owner, that might be set up to show that B’s seizure was not unlawful. If the divesting is lawful, A’s right of possession may be destroyed entirely or may be merely suspended or temporarily divested … So where the law permits them to be seized or detained for a certain time or for a certain purpose or until a certain event, A’s possession is suspended or temporarily divested and the right of possession is vested in, or A’s right to possession is displaced by, the right of possession in the person authorised to seize them or detain them for the period during which he is authorised. In other words, A’s property and right to possession are made subject to the right of the police or other person seizing under the authority of the law to detain them during the period during which the detention is authorised; when that time expires, and no lawful order has been made for the disposition, his right to possession, if nothing more appears, again operates. I say ‘if nothing more appears’, for if it may appear by evidence that A never had a right of possession, as in [Buckley], and that therefore there was no suspended right of possession to revive or again operate … He went on to quote the passage from the judgment of Wills J in D’Eyncourt to the effect that the obligation even extended to monies obtained by false pretences and concluded: Whether the last quoted passage is consistent with the dicta in [Buckley] it is unnecessary to consider here, as plaintiff’s possession has not been shown to be wrongful. In Betts v Receiver of Metropolitan Police District and Carter Paterson & Co Ltd [1932] 2 KB 595 (‘Betts’) the police seized from the claimant certain cloth believing it to be stolen from Carter Paterson and delivered it to Carter Paterson, without any order under the Police (Property) Act 1897 (‘the 1897 Act’) which was in substantially the same terms as the 1839 Act. The claimant sued the receiver and Carter Paterson and du Parcq J held that, since the theft could not be established and the delivery had been made without any order under the Act, the claimant in right of his possession at the time of seizure (subject only in case of the receiver to a limitation defence) was entitled to succeed in conversion against both defendants.

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The judgment of Cockburn CJ in Buckley was referred to and approved and applied by the Court of Appeal in Irving. In that case the dispute arose as to certain goods seized by the police when in the possession of the claimant in which neither the claimant nor the defendant could establish that they were the true owners. Pursuant to the provisions of section 1 of the 1897 Act the court of summary jurisdiction directed that goods should be delivered to the defendant as the person who appeared to be the lawful owner. The claimant sued the defendant claiming ownership of the goods. The Court of Appeal rejected the claim. Holroyd Pearce LJ (at p 78) said: [The 1897] Act was passed in substitution for an earlier Act, the Metropolitan Police Act, 1839, which by section 29 made similar provisions. It provides practical machinery to deal with a practical situation. Although the Act does not, until the expiration of six  months, affect the right of any person to take proceedings, it does alter the fact of possession. When an order has been made by a tribunal under the Act for delivery of property to a claimant, the Act cannot have intended the claimant to remain a bailee for the former possessor. The claimant has, by due process of law, after inquiry, had physical possession transferred to him. It is still open to anyone during the ensuing six  months to claim the goods from him, provided that the claimant can establish his right to do so. Had the Act intended, it could have preserved the prior rights of possession in the former possessor. But it has not done so, and previous possession of goods now in the hands of another does not raise a presumption of present title in the previous owner, unless the person who has received them from him has done so as a wrongdoer or as agent of bailee of the previous owner … This view of the matter is in accordance with the dictum of Cockburn CJ in [Buckley]. After setting out the passage which I have quoted, he continued: Those observations of the Chief Justice make it clear, in my view, that under this Act of 1897, as under the earlier Act of 1839, the plaintiff can no longer rely on a presumption from his previous possession. Therefore the burden is on the plaintiff to prove that he is entitled to the notes or to damages for their conversion. If he cannot discharge that burden he fails in the action. The judge rightly held that his story on that matter was not to be believed, and that he failed to discharge the onus of proof. I entirely agree with the judgment of the judge. Willmer LJ said (at p 82): ‘I come to the same conclusion as the county court judge, namely that the effect of the magistrates’ order was to shift the burden of proof.’ Davies LJ said (at p 82): I entirely agree. … It seems to me plain on the wording of the statute that the effect of the magistrates’ order made in this case was to vest the possession of these notes in the defendants, and of course, naturally and consequently, to divest the plaintiff of any possessory title that he might have had, not merely before the police seized the notes, but up to the time when the magistrates made the order. … The only other thing I would say is this. I agree entirely with what my Lords have said about the dictum of Cockburn CJ in [Buckley]; and with regard to the other authority which was cited to us, namely Betts … the facts of that case, so far as a relevant comparison can be made, are as different from the present case as they possibly can be. In Betts’s case no order under the statute had been made, and it was for that reason, of course, that du Parcq J directed the jury and gave judgment as he did. It is, I think, implicit in the judgment in Betts’s case that, if an order under the Police (Property) Act 1897 had been made in that case, then the position would have been, not as it was there, but as, in the opinion of this court, it is in the present case.

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Donaldson LJ in Parker v BA Board [1982] QB 1004 at 1010 (‘Parker’) explained the balancing exercise required of the law in the situation under consideration and how the balance should be struck: [In Armory v Delamirie (1722) 1 Stra [505]] Pratt CJ ruled: ‘That the finder of a jewel, though he does not by such finding acquire an absolute property or ownership, yet he has such a property as will enable him to keep it against all but the rightful owner, and consequently may maintain trover? … The rule as stated by Pratt CJ must be right as a general proposition, for otherwise lost property would be subject to a free-for-all in which the physically weakest would go to the wall …’ One might have expected there to be decisions clearly qualifying the general rule where the circumstances are that someone finds a chattel and thereupon forms the dishonest intention of keeping it regardless of the rights of the true owner or of anyone else. But that is not the case. There could be a number of reasons. Dishonest finders will often be trespassers. They are unlikely to risk invoking the law, particularly against another dishonest taker, and a subsequent honest taker is likely to have a superior title: see eg [Buckley]. However he probably has some title, albeit a frail one, because of the need to avoid a free for all. That seems to be the law in Ontario, Canada: see Bird v Fort Frances [1949] 2 DLR 791 [‘Bird’]. In fact in the case of Bird the court expressly reserved the question whether such a title was obtained if the wrongful taker had a felonious intent and the taking was felonious: pp 798–799. In the case of Webb, May LJ referred to the decision in Field: Possession As to entitlement to possession, there is an instructive analysis in the decision of the Supreme Court of Victoria in [Field]. The essence of an extended passage in the judgment of Macfarlan J, at pp 84–87, is that if goods are in the possession of a person, on the face of it he has the right to that possession. His right to possession may be suspended or temporarily divested if the goods are seized by the police under lawful authority. If the police right to retain the goods comes to an end, the right to possession of the person from whom they were seized revives. In the absence of any evidence that anybody else is the true owner, once the police right of retention comes to an end, the person from whom they were compulsorily taken is entitled to possession. The reference cannot be treated as any form of approval of the reservations expressed by Macfarlan J where possession has been unlawfully obtained. In my view on a review of the authorities (save so far as legislation otherwise provides) as a matter of principle and authority possession means the same thing and is entitled to the same legal protection whether or not it has been obtained lawfully or by theft or by other unlawful means. It vests in the possessor a possessory title which is good against the world save as against anyone setting up or claiming under a better title. In the case of a theft the title is frail, and of likely limited value (see eg Rowland v Divall [1923] 2 KB 500), but nonetheless remains a title to which the law affords protection. Support for this proposition can be found in the dicta of Wills J in D’Eyncourt and Donaldson LJ in Parker. The decision in Buckley and the dicta of all three judges that a wrong-doer is entitled to protection against a wrong-doer accords with the proposition; Blackburn J inclined to agree that possession was protected even if obtained by a felonious taking; and in view of the differences in the reports of the judgment of Crompton J (and the later decision on the significance of a magistrate’s order in Betts) I do not think that his judgment takes the matter further. If Buckley is no obstacle in the way of acceptance of the proposition, then Field cannot be an obstacle either, for it merely leaves open the effect of Buckley. The frailty of the protection is reflected 112

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in the decisions in Buckley and Irving that, if  the stolen property in the possession of the thief or a receiver is seized by the police and pursuant to statutory authority possession is transferred to someone else (but not otherwise), the transferee obtains the possessory title in defeasance of that of the thief or receiver. There are authorities (eg Bird) which reveal a natural moral disinclination (on occasion expressed in terms of public policy) to recognise the entitlement of a thief, receiver or other wrong-doer to the protection by the law of his possession, and one decision (namely Solomon) refusing such protection. But it is clear from Webb that such a disinclination and public policy do not afford a sufficient ground to deprive a possessor of such recognition and protection. This conclusion is in accord with that long ago reached by the courts that even a thief is entitled to the protection of the criminal law against the theft from him of that which he has himself stolen: see eg Smith & Hogan, Criminal Law, 9th ed p 522. I accordingly reject the first suggested exception or qualification.

Commentary 2.18  The court in Costello emphasised the primacy of possessory title. Lightman J made it clear that, historically, even a thief has enjoyed a title to possession, albeit a frail one. The court went on to restate the common law jus tertii doctrine with respect to possessory title in goods, as first enunciated in Buckley v Gross (1863) 3 B & S 556 at 559: ‘a thief obtains a good possessory title as against a wrong-doer against him, but that, if possession is lawfully divested from him and vested in another, his prior possession will not avail him to recover possession’. On the facts of Costello, Lightman J concluded that extinguishment of the prior possession could only take place where the police had transferred possession of the seized goods to a successor. This would usually occur through the operation of a statutory power of sale. His Honour made the following comments at 1442: If the stolen property in the possession of the thief or a receiver is seized by the police and pursuant to statutory authority possession is transferred to someone else, the transferee obtains the possessory title in defeasance of that of the thief or receiver.

In the absence of such a transfer, the prior possessory title of Costello remained enforceable against the police and the jus tertii defence could not be raised. See also A Steel, ‘Taking Possession: The Defining Element of Theft’ (2008) Melbourne University Law Review 32. Young CJ, Santow and Basten JJA in the New South Wales Court of Appeal in Anderson Group Pty Ltd v Tynan Motors Pty Ltd [2006] NSWCA 22 at [93] held that from the time of Elizabeth I, jus tertii ‘appears to be grounded in common law estoppel by representation, that is, that as the defendant took title from the plaintiff he is as much estopped from denying the plaintiff’s title as a tenant of real property is estopped from denying the landlord’s title’.

2.19  Revision Questions 1. Explain the different rights and actions available to a dispossessed land holder and those available to a person dispossessed of goods or personal property. 2. Where the finder of personal property acquires possession, in what circumstances can the owner of the land upon which the goods are found assert a superior claim to the goods? 3. Is it possible for a finder to claim possession over goods that are attached to the land? 113

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4. What is a bailment and how does it regulate the possession of personal property? 5. Can a bailee claim damages in tort against a third party despite not being in breach of the terms and conditions of the bailment? What rights does a possessory title give a bailee? 6. Why is the jus tertii defence not available with respect to disputes involving possessory title over land? How does Asher v Whitlock and Perry v Clissold support this conclusion? 7. Explain why it was that the police were unable to raise a jus tertii defence over the suspected stolen car that they seized in Costello v Chief Constable of Derbyshire Constabulary.

The PPSA 2.20  The PPSA is an important legislative development for the creation and enforcement

of security interests in personal property. It fundamentally alters the way in which some of the core personal property principles operate with respect to security interests. The PPSA was introduced with the aim of providing greater certainty and consistency and drew extensively from similar developments in New Zealand, Canadian provinces and the United States. The PPSA constructs a new registration and priority framework for security interests in personal property that come within its application. The PPSA is partly based upon Article 9 of the Commercial Code in the United States, which is reflected in s 12(1) of the PPSA and which defines the nature of a security interest. Section 12(1) provides as follows: 12(1) A security interest means an interest in personal property provided for by a transaction that, in substance, secures payment or performance of an obligation (without regard to the form of the transaction or of the identity of the person who has title to the property).

This is a highly functional definition of a security interest in personal property that is not based upon the conferral of title or the character of the security documentation. What needs to be established is: (1) an outstanding existing monetary or non-monetary obligation; (2) an ‘in substance security’ to support the performance of that obligation; (3) that the security must amount to an interest in the personal property; and (4) that the interest must arise out of a transaction. This effectively means that any outstanding debt, even if it secures the debt and imposes other additional obligations, may be covered by the PPSA. The focus upon ‘substance’ indicates that all security interests are to be treated in a similar manner, irrespective of whether they are derived from law or equity or whether they constitute a charge or a mortgage. An ‘interest’ in personal property is defined in s 10 of the PPSA to include a right in the personal property that would encompass both a legal and an equitable interest. Finally, s 12 only applies if an anterior consensual security agreement results in the secured party obtaining an interest in the secured property. It will not apply if the security interest arises by operation of law. Examples of security interests include: charge, chattel mortgage, conditional sale, hire purchase, pledge and a goods lease. Collateral is defined under the PPSA as personal property to which the security interest is attached and includes personal property that is described by the registration. A grantor is a person who has an interest in personal property to which a security interest is attached. 114

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A secured party is a person who holds a security interest either in their own right or on behalf of a third party. Generally, a security interest will attach to personal property where a person gives value for acquiring the security interest (or does something else to acquire it) and in return the person gains rights in the collateral. Once a security interest becomes attached it will be enforceable against the grantor. A security interest will be ‘perfected’ (ss 21–22) if it is attached to the collateral, enforceable against third parties, (s 20) the collateral is registered, and the secured party has possession (ss 23–24) or control (ss 25–29) of the collateral. The PPSA sets out rules to determine the priorities of different securities. A secured party who holds lower priority security interests has rights in relation to the collateral that are subject to those of a higher priority security interest. When registering a PPSA security interest under the register created by the Act, the collateral must be described as either ‘consumer property’ or ‘commercial property’. The PPSA sets out that where a person acquires an interest that is not a security interest in personal property by purchasing or leasing the property free of a security interest, the buyer or lessee of the personal property for value takes the property free of an unperfected security interest and free of the security interest if a search of the register does not disclose that interest (ss 43–59). These provisions are subject to transitional periods and exclude migrated interests in motor vehicles or watercraft. A buyer or lessee of personal property will also take the property free of a security interest if the property was sold or leased in the ordinary course of a business of that kind. This will not apply if the buyer or lessee has actual knowledge that the sale or lease breaches a security agreement. A buyer or lessee of personal property will also take that property free of a security interest if the buyer or lessee intends to use that property for domestic, personal or household purposes, and the market value is $5000 or less. The order of priority for enforcement of competing interests in the same collateral is set out in ss 55–61 and may be summarised as follows: 1. a security interest perfected by control that was first perfected; 2. a security interest perfected by control that was subsequently perfected; 3. a security interest perfected other than by control that has the earliest priority time; 4. a security interest perfected other than by control that has a subsequent priority time; 5. an unperfected security interest that first attached to the collateral; 6. an unperfected security interest that later attached to the collateral; and 7. a security interest in relation to which the PPSA does not apply. The priority time is the first to occur of the registration time, the time the secured party or their representative first perfects the security interest by taking possession or control of the collateral or the time the security interest is temporarily perfected. Purchase money security interests (PMSI) are given a superior priority over other security interests under the PPSA. A PMSI will arise where both security interests are granted by the same grantor over the same collateral and it is in personal property and it is registered before the end of 15 days after the day the grantor obtains possession of the property. An example is the retention of a title arrangement where the goods are in possession of the purchaser. 115

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If the interest is not a PMSI, security interests that are ‘perfected’ by control have priority over security interests in the same collateral that are ‘perfected’ by other means: s 57. The type of security interests that may be perfected by control include: an investment instrument, a negotiable instrument, an authorised deposit-taking institution account and an ‘intermediated’ security: s 21(2)(c). Priority under the PPSA will generally be granted to the holder of an original security interest in the event of a dispute following the transfer of collateral: s 55(4). Further, a perfected security interest in collateral will have priority over an unperfected security interest in the same collateral: s 55(3). Priority between unperfected security interests in the same collateral will take effect according to the order of attachment of the security interests: s 55(2). The PPSA allows security interests to be enforced by conferring rights to seize, retain and dispose of the collateral. A secured party with a perfected security interest may seize collateral, by a method permitted by law, if the debtor is in default, where notice is given to the grantor: ss 123–24. A secured party may also take ‘apparent control’ where goods cannot be readily removed from the premises or adequate storage facilities are not available: s 126. A secured party who seizes the property must take action to dispose of the property (Div 3) or take action to retain (Div 4) the collateral. Parties may, however, contract out of enforcement provisions if the collateral is not primarily used for personal, domestic or household use: s 115(1). Further, the enforcement provisions do not apply to a receiver: s 116. The PPSA establishes a single, national personal property security register. Registration of a security interest is not mandatory but is an element of ‘perfection’. Neither the property nor the grantor need be located in Australia provided a sufficient connection to Australia can be established. Whenever a new registration or an amendment or removal occurs, the register will provide each relevant security party with a verification statement: ss 153–61. In summary, the PPSA has a number of key aspects to it which have fundamentally altered the way in which security interests in personal property are now regulated: 1. The PPSA applies to every transaction, regardless of form, that in substance generates a security interest and this includes both transfer and title retention (Romalpa clause) arrangements as well as a conditional sale agreement. 2. The PPSA sets up a national, uniform registration system for personal property security interests that apply to all ‘in substance’ security interests. 3. The PPSA provides for security interests to be ‘perfected’ by various means including in particular registration and sets out that the holder of an ‘unperfected’ security interest effectively becomes an unsecured creditor if the grantor becomes subject to insolvency proceedings (ie, bankruptcy, winding-up or voluntary administration). 4. The PPSA provides that an ‘unperfected’ security interest is subordinate to a competing perfected security interest in the same collateral and, in a competition between security interests that have been perfected by registration, the general rule is that the first registered security interest gains priority: s 55. 5. The PPSA gives super-priority status to ‘purchase money security interests’ and other Romalpa agreements so that the PMSI will gain priority over competing non-PMSI security interests despite the order of registration. 116

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6. The PPSA extends the PMSI’s super-priority status to cover proceeds that result from a sale or other dealing in the collateral so that the holder of the PMSI gains priority, subject to conditions, over competing claims to the money or other consideration the buyer receives in exchange for the original goods. 7. The PPSA introduces special provisions for raw materials and manufacturing inputs (commingled goods) so that the seller’s security interest continues into the product in the event of competing claims to the end product. 8. The PPSA enacts special rules for component parts and accessions, setting out that the component seller’s security interest continues following incorporation of the component into the integrated goods and thereby addressing competing claims to the component between the component seller and the owner of the integrated goods. Where the PPSA applies, because the security interest comes within the scope of s 12(1), the new priority and registration framework will apply and the old common law rules and state-based statutory provisions will not apply. Where, however, the PPSA does not apply, because the transaction does not comply with s 12(1) and does not come within the application of the Act, a security interest in personal property will continue to be subject to the common law principles outlined above. Section 73 of the PPSA provides priority rules for security interests that fall outside the PPSA. In essence, this section sets out that the priority of a security interest falling outside will be determined according to the relevant commonwealth, state or territory law. Section 8 of the PPSA sets out exclusions under the PPSA. These include: goods shipped, statutory security interests arising by operation of law, possessory liens arising by operation of law, financial services, any right or interest held under an approved ‘closeout’ or ‘market netting’ contract, certain creations and transfers of interests in relation to land, unearned rights to payment or wages, insurance and accounts, and other financial obligations. For further discussion and elaboration on the changes implemented by the PPSA see: J  Stumble, ‘The PPSA: The Extended Reach of the Definition of the PPSA Security Interest’ (2011) 2 UNSWLJ 448; F Hunt, ‘Enforcement of Security Interests under the Personal Property Security Act 2009’ (2011) 25 Australia and New Zealand Maritime Law Journal 130; A Duggan, ‘Romalpa Agreements Post PPSA’ (2011) 33 Sydney Law Review 645; A Duggan, ‘The Australian PPSA from a Canadian Perspective: Some Comparative Reflections’ (2014) 40(1) Monash University Law Review 59; S McCracken, ‘Personal Property Securities Legislation: Analysing the New Lexicon’ (2014) 35(1) Adelaide Law Review 71. In Dura Australia Constructions Pty Ltd v Hue Boutique Living Pty Ltd [2014] VSCA 326, Santamaria JA made some general observations and the operative scope and dimension of the PPSA at [17]: • ‘Personal property’ is any form of property other than land and certain licences. • The definition of ‘security interest’ is fundamental. It is a ‘functional definition’. It means an interest ‘in personal property that is provided for by a transaction that, in substance, secures payment or performance of an obligation’. ‘Transaction’ is not defined in the PPSA. • Although the PPSA lists a series of familiar security interests, such as a fixed charge or a floating charge, these are said to be only examples of the ‘functional’ concept. • The holder of a ‘security interest’ is referred to as the ‘secured party’. 117

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• The PPSA distinguishes a ‘debtor’ from a ‘grantor’; the former is the person who owes payment or performance of an obligation that is secured by a security interest in personal property; the latter is a person who has the interest in the personal property to which a security interest is attached. More often than not, the debtor and the grantor will be the same person. • Security interests are effective and enforceable against grantors where those interests have attached to the collateral that is the subject of the interest; they are enforceable against third parties where they have been perfected. • A security interest attaches to collateral when the grantor has rights in the collateral, or the power to transfer rights in the collateral, and value is given or the grantor does an act that creates the security interest. • A security interest in particular collateral is perfected when the interest has attached to the property and the secured party has either taken possession or control of the property or has registered it on the PPS Register established under s 147 of the PPSA. • The PPSA also sets up rules for the determination of priorities between security interests. In particular, a perfected security interest has priority over an unperfected security interest and the security interest that has been continually perfected for the longest time generally has the highest priority. • Finally, unperfected security interests held by a secured party vest in the grantor upon the bankruptcy or the winding up of the latter.

2.21  Revision Questions 1. What do you think is the rationale for excluding some personal property security interests from the application of the PPSA? 2. How does the definition of a security interest in the PPSA differ from the approach by the common law? 3. Explain how the new priority rules in the PPSA function? 4. Discuss the scope and range of the new statutory enforcement provisions in the PPSA and consider how they may impact upon some of the common law rules.

Possession and Seisin 2.22  Seisin is a term derived from feudal times which originally indicated that a person

held formal legal ownership of a freehold estate in land as opposed to a bare possessory title. Seisin means that the person in possession of the land also holds freehold title over the land. Hence, a tenant holding a leasehold interest in the land holds possession of the land but historically was not regarded as having title in the land and therefore was not ‘seised’ of the land. This was because only a person who was able to utilise the old real actions for the recovery of land could be regarded as ‘seised’ of the land. The writs of entry and possessory assizes were only available to a person seised of the freehold estate. Thus, a tenant who was dispossessed was unable to recover possession because seisin remained with the landlord. Eventually, the writ of ejectment evolved. This writ provided a more efficient and simpler process for recovery of possession than the old real actions. Consequently, the writ of ejectment began to be used as an action to recover possession for both freehold and­­

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non-freehold estates. The general application of this remedial writ diminished the importance of the distinction between seisin and possession. This meant that possessory title could indicate seisin, where the holder retained a freehold estate, or it could also indicate a lesser estate. In modern times, the concept of seisin has been replaced by ‘registered title’ as registration has become the primary method of conveying land title. The historical relevance of seisin and possession within the doctrine of estates was examined by Professor Philbrick. Extracts from his discussion are set out below.

  Seisin and Possession as the Basis of Legal Title  F S Philbrick (1938–39) 24 Iowa Law Review 268 at 272–7 Seisin, speaking loosely, was the legal possession of old Germanic law. For at least three centuries after the Norman Conquest our lawyers had no other word whereby to describe possession. It  is true, however, that possession, apparently, has never had in any century precisely the same meaning which attached to seisin in any other century. Before the end of the 1500s both concepts and words were well established. While the word possession had not appeared, many situations which we today cover with that label — indeed, the vast majority of them — were included within the concept of seisin. On the other hand there were certain exceedingly important forms of dispossession (described by the terms abatement and intrusion) that were treated as disseisins, yet were not typical disseisins because they lacked an actual ouster. Also, after a true disseisin, seisin might in some cases (probably actually numerous) be regained by acts which we would not today describe as amounting to a repossession, although Littleton (1485) did so describe them; namely, by ‘mere “continual claim” against a disseisor whose strength made an actual entry upon the land impossible or dangerous’. Nor is this analogous to the ‘constructive possession’ of our modern law, since the latter is attributed to one person only when no other person is in actual possession — though the analogy does fit Littleton’s usage. When seisin existed, it enjoyed a protection analogous to and in the main coincident with that accorded today to legal possession. But ‘possession’ also then existed in the case of a tenant for years, and the law’s protection of such possession was not the same as its protection of seisin; nor was it identical with the protection given today to a tenant’s possession. Also, without even the single exception … actual seisin could not be gained without acquiring actual possession. Both could be gained, however, by any wrongdoer; and the usurper could pass both to anybody else. … when the man whom we would call owner lost his seisin he was left with a ‘mere right’ which we could call an imperfect title; and the way he recovered both seisin and what we could call complete or perfect title was by merely reacquiring possession. ‘On the one hand the freehold [estate] could not be made by any person who had the possession without transferring the freehold.’ After the word ‘possession’ entered the law it and ‘seisin’ gradually acquired definitely variant meanings. In the 1400s possession became the proper term to designate legally protected control of chattels personal, whereas in the two preceding centuries it was constant usage to speak of the seisin of such chattels. The reason why seisin was thus detached from chattels, yet for centuries retained vitality in the land law, can only be conjecturally stated, yet with some confidence. The difficulty was not that feudal tenure and its consequences could not be applied to chattels. The rents and profits of the leasehold might, indeed, have been made the basis of feudal services, but the leasehold had been renounced; and the enjoyment of a chattel personal did not take the form of rents and profits. But feudalism was early doomed; its incidents began to lose vitality when tenure received in 1290 from the statute of Quia Emptores the blow which ultimately destroyed it. Nor did the difficulty lie 119

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in the inapplicability of seisin to chattels, as the history of the word shows. Seisin was quite unconnected in the origin, with feudalism’s basic concept of tenure, and the application of its principles very often totally defeated the claims of feudal lords to wardship, escheat and other feudal derivatives of tenure. The continued attribution of seisin to chattels in no way contradicted the doctrines of the feudal land law. The real cause lay merely, it would seem in the unimportance of such attribution, and in the influence of the attribution of possession to chattels real. The exclusive position in the land law, and special importance in governmental arrangements, of freehold estates, of which seisin was the basis, made seisin of chattels meaningless. Particularly important was the fact that the common-law rules governing the inheritance of land, with the basic principle of seisina facit stipitem, although also derived from Germanic law and quite independent from feudalism in origin, were perfectly adapted to the desires of the great landowners — especially, of course, the rule of primogeniture. To these associations with vital social interests seisin apparently owed its preservation as a concept of the land law. The practical differences between it and possession gradually decreased until finally, long after its own importance was gone and long after feudalism had lost all reality, ‘seisin’ became a ‘technical term to denote the completion of that investiture by which the tenant was admitted into the tenure, and without which no freehold could be constituted or pass.’ This last phrase was old and actual law; the preceding explanation was a fictitious legal principle of literary feudalism. Before these changes in the meaning of ‘seisin’ had more than well begun terms for years had become of importance. Originally not a property institute at all, when they became such they were perforce, for lack of seisin, denied recognition as real property, and thus became personalty as chattels ‘real’. The landlord was then regarded as seised of his reversionary estate (if a freehold) while the tenant was possessed of the land itself; and this usage persists in our law today. The differentiation of the two concepts was also unavoidable in distinguishing the rights of a guardian from those of his ward actually on the land, and the rights of any feudal lord from those of his vassal occupying the feudal tenement. True, some confusion of the two concepts inevitably continued; but such instances were exceptional. The way out of the difficulty lay, of course, in applying the differentiation (present and clear as far back as reversions and remainders were recognised, and necessarily accentuated by the development of leaseholds just referred to) between seisin ‘in law’ of an estate and ‘actual’ seisin of land. Legal speech followed this development. An illustration is found in the fact that after the Statute of Uses (1535) had declared that persons ‘having’ the use of lands should thereafter have a corresponding legal ‘seisin, estate and possession of them’, the courts proceeded to concede acquisition of the seisin, but not of the possession without actual physical entry … As used today in our lawbooks, words of seisin and disseisin can be more properly displaced by words of possession and dispossession except where the former are used with reference to freehold estate as distinguished from the land in which they exist …

Remedies for Real and Personal Property 2.23  Real property refers to property interests over land, whereas personal property

refers to property interests over goods and chattels. There is a fundamental difference in the way that each of these forms of property are protected. Historically, real property interests have always been supported by real actions including the praecipe in capite (historically the main writ for the recovery of land), the grand assize, the possessory assizes and the writs of entry, entitling a dispossessed holder to recover. By contrast, personal property is supported by personal remedies that are enforceable against the person interfering with the possession of the goods. Hence, where a holder is

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dispossessed of a chattel, the relief will generally stem from either a tortious or contractual action, depending upon the particular circumstances. For example, damages may be available to support a tort of conversion, a tort of detinue or to support trespass to property. Alternatively, damages may be available where it can be established that the interference with possession constitutes a breach of bailment or a breach of contract. In some limited circumstances restitution of the goods may be available under specific statutory provisions, or where the equity jurisdiction is prepared to impose a resulting or constructive trust in order to prevent the interfering party from unconscionably retaining goods that do not belong to them. The decision whether to seek damages at law or injunctive relief in equity may depend upon whether damages are inadequate, or whether damages are available at all. As noted by Millett LJ in Jaggard v Sawyer [1995] 1 WLR 269 at 276: … many proprietary rights cannot be protected at all by the common law. The owner must submit to unlawful interference with his rights and be content with damages. If he wants to be protected he must seek equitable relief, and he has no absolute right to that. In many cases, it is true, an injunction will be granted almost as of course, but this is not always the case, and it will never be granted if this would cause injustice to the defendant.

The danger of ‘expropriating’ the defendant’s property should be balanced by careful circumstantial assessment. Lord Westbury LC in Isenberg v East India House Estate Co Ltd (1863) 3 De GJ & S 263 at 273; 46 ER 637 at 641 concluded that it was the duty of the court not: … by granting a mandatory injunction, to deliver over the Defendants to the Plaintiff bound hand and foot, in order to be made subject to any extortionate demand that he may by possibility make, but to substitute for such mandatory injunction an inquiry before itself, in order to ascertain the measure of damage that has been actually sustained.

The old common law real actions for recovery have been abolished: see Common Law Procedure Act 1852 (UK), which was subsequently followed in Australia. Today, there are specific statutory provisions and rules for the recovery of possession in each state. See Supreme Court Act 1986 (Vic) ss 79–84; Supreme Court Act 1970 (NSW) s 79 and Civil Procedure Act 2005 (NSW) s 20; Supreme Court Rules Amendment (No 8 of 1997) (WA) rr 12–15; Supreme Court Rules 2000 (Tas); Supreme Court Act 1995 (Qld); Civil Law (Property) Act 2006 (ACT) s 438; Law of Property Act 1936 (SA).

2.24  Revision Questions 1. What is the difference between possession and seisin? 2. What, according to Philbrick (see 2.20), was one of the main reasons for the attachment of ‘seisin’ rather than ‘possession’ to land estates? 3. Describe the remedial distinction between real actions supporting real property interests and personal actions supporting personal property interests. 4. In some circumstances the equitable jurisdiction will issue relief, where the common law is inadequate, against personal property. This relief will generally take the form of specific performance or injunctive relief that perpetuates or interrupts the rights of the holder of that personal property. Does the availability of specific performance to enforce — for example, a contract for the sale of goods — give a form of relief that is akin to a real action? What are some of the differences between equitable relief for personal property and the availability of common law real actions. 5. In what circumstances will a security interest attach to ‘collateral’ pursuant to the provisions of the PPSA? 121

Chapter 3

Fixtures, Encroachment and Boundaries The Doctrine of Fixtures 3.1 Degree of annexation 3.2 Case: Elitestone Ltd v Morris 3.2 Commentary 3.3 Object of annexation 3.4 The intention of the affixer 3.5 The nature of the chattel 3.6 Overall circumstances 3.7 Tenant’s rights to remove 3.8 Fixtures and third parties 3.9 Case: Metal Manufactures Limited v Federal Commissioner of Taxation 3.10 Commentary 3.11 Other statutory provisions 3.12 Revision Questions 3.13 Fixtures and the PPSA 3.14 Case: Power Rental Op Co Australia, LLC v Forge Group Power Ltd (in liq) (receivers and managers appointed) 3.14 Commentary 3.15 The Enduring Relevance of the Common Law Fixtures Text 3.16 Revision Questions 3.17 Boundaries: Land Abutting Water 3.18 Tidal water boundaries 3.19 Non-tidal water boundaries 3.20 Extract: Water Act 2000 (QLD) — s 5A 3.20 Water rights 3.21 The doctrine of accretion and avulsion 3.22 Case: Williams v Booth 3.23 122

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Commentary 3.24 Revision Questions 3.25 Boundaries and Encroachments for Land 3.26 Error in title 3.27 Contractual errors 3.28 Fence boundaries 3.29 Extract: Fences Act 1968 (Vic) — s 7 3.29 Encroachments on to land 3.30 Extract: Neighbourhood Disputes (Dividing Fences and Trees) Act 2011 (QLD) — s 52 3.30 Revision Questions 3.31 Answer Plan 3.32

The Doctrine of Fixtures 3.1  The common law doctrine of fixtures has ancient origins being broadly based upon the ancient Roman law of accession.1 Fixtures are goods that have been annexed to land such that they lose their independent identity as a good and become a part of the land. The  principles that regulate the doctrine of fixtures stem from the broader concept of ‘quicquid plantatus solo, solo credit’ — ‘whatever is affixed to the soil becomes part of the soil’. The question whether an item is a chattel or a fixture ultimately depends on whether the item was placed on the land with the intention that it become part of the land or whether it was placed on the land with the intention that it remain separate from it.2 In some ways, the doctrine is somewhat outdated in that it does not necessarily reflect current commercial practices. As outlined by Sackville AJA in Agripower Barabba Pty Ltd v Blomfield [2015] NSWCA 30 at [75]: The law of fixtures is in some ways a relic of a period when greater emphasis was placed on physical acts, such as the annexation of chattels to land, than on whether there were good commercial or policy reasons for concluding that those acts should produce changes in title.

In National Australia Bank Ltd v Blacker (2000) 179 ALR 97, Conti J set out that there are a variety of general principles relevant to this determination, but the two most common are the degree of annexation and the object of annexation. The question of whether or not a chattel has become a fixture is particularly relevant in circumstances where the exact scope and nature of the land interest is relevant. For example, when a purchaser enters into a contract of sale to purchase land, it is important for the purchaser to understand what chattels, if any, are to be treated as a part of the land. All of the naturally affixed resources such as trees and streams will automatically pass, but so too will other constructed fixtures that have been physically attached to the land for the purpose of benefiting the land. Fixtures can include a large number of different things. In a residential context they may refer to a dwelling, a boundary fence, a shed, a cubby house, carpets, light fittings, or blinds and curtains. In a commercial context they may refer to machinery, pipes, cables, or equipment. 1. Wake v Hall (1883) 8 App Cas 195 at 203–4 per Lord Blackburn; 206–7 per Lord Watson and 210 per Lord Fitzgerald. The doctrine of accession reassigns ownership of resources or things to some other thing, such as land, that is already owned. See the discussion by T W Merrill, ‘Accession and Ownership’ 1 Journal of Legal Analysis 259. 2. Reid v Smith (1906) 3 CLR 656. 123

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The two tests applied in determining whether a good has become a fixture are the degree of annexation and the object of annexation. These tests are useful directives but ultimately, the question is one that must depend upon a holistic examination of all of the circumstances. As outlined by Blackburn J in Holland v Hodgson (1872) LR 7 CP 328 at 334–5: There is no doubt that the general maxim of the law is that what is annexed to the land becomes part of the land; but it is very difficult, if not impossible, to say with precision what constitutes an annexation sufficient for this purpose. It is a question which must depend on the circumstances of each case, and mainly on two circumstances, as indicating the intention, viz, the degree of annexation and the object of the annexation. When the article in question is no further attached to the land than by its own weight it is generally to be considered a mere chattel. But even in such a case, if the intention is apparent to make the articles part of the land, they do become part of the land. … On the other hand, an article may be very firmly fixed to the land, and yet the circumstances may be such as to shew that it is never intended to be part of the land, and then it does not become part of the land. … Perhaps the true rule is, that articles not otherwise attached to the land than by their own weight are not to be considered as part of the land, unless the circumstances are such as to shew that they were intended to be part of the land, the onus of shewing that they were so intended lying on those who assert that they have ceased to be chattels, and that, on the contrary, an article which is affixed to the land even slightly is to be considered as part of the land, unless the circumstances are such as to shew that it was intended all along to continue a chattel, the onus lying on those who contend that it is a chattel.

See also: Eon Metals NL v Commissioner of State Taxation (WA) (1991) 91 ATC 4841. In  PricewaterhouseCoopers Legal v Perpetual Trustees Victoria Ltd [2007] NSWCA 271 at  [14] per Ipp JA (with Giles JA and McClellan CJ concurring) noted that the object of annexation may go ‘beyond assessing the degree of annexation and the purpose of annexation to require a consideration of all the relevant circumstances’. This was confirmed in TEC Desert Pty Ltd v Commissioner of State Revenue (2010) 273 ALR 134 at [24] per French CJ, Heydon, Gummow, Crennan and Kiefel JJ.

Degree of annexation 3.2  The general presumption, which is capable of being rebutted where the circumstances indicate otherwise, is that goods merely resting on the land are not attached and are therefore not fixtures, and goods that are attached to the land, however slightly, are fixtures. The position was well summarised by Blackburn J in Holland v Hodgson (1872) LR 7 CP 328 at 334–5: … Perhaps the true rule is, that articles not otherwise attached to the land than by their own weight are not to be considered as part of the land, unless the circumstances are such as to shew that they were intended to be part of the land, the onus of shewing that they were so intended lying on those who assert that they have ceased to be chattels, and that, on the contrary, an article which is affixed to the land even slightly is to be considered as part of the land, unless the circumstances are such as to shew that it was intended all along to continue a chattel, the onus lying on those who contend that it is a chattel.

The often quoted passage in the judgment of Jordan CJ in Australian Provincial Assurance Co Ltd v Coroneo (1938) 38 SR (NSW) 700 at 712 also provides a good overview of the relevance of the degree of annexation:

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3.2

A fixture is a thing once a chattel which has become in law land through having been fixed to land. The question whether a chattel has become a fixture depends upon whether it has been fixed to land, and if so for what purpose. If a chattel is actually fixed to land to any extent, by  any means other than its own weight, then prima facie it is a fixture; and the burden of proof is upon anyone who asserts that it is not: if it is not otherwise fixed but is kept in position by its own weight, then prima facie it is not a fixture; and the burden of proof is on anyone who asserts that it is: Holland v Hodgson LR 7 CP 328 at 335. The test of whether a chattel which has been to some extent fixed to land is a fixture is whether it has been fixed with the intention that it shall remain in position permanently or for an indefinite or substantial period: Holland v Hodgson, or whether it has been fixed with the intent that it shall remain in position only for some temporary purpose: Vaudeville Electric Cinema Ltd v Muriset (1923) 2 Ch 74 at 87. In the former case, it is a fixture, whether it has been fixed for the better enjoyment of the land or building, or fixed merely to steady the thing itself, for the better use or enjoyment of the thing fixed: Holland v Hodgson; Reynolds v Ashby and Son (1904) AC 466; Colledge v H C Curlett Construction Co Ltd (1932) NZLR 1060; Benger v Quartermain (1934) NZLR s 13. If it is proved to have been fixed merely for a temporary purpose it is not a fixture: Holland v  Hodgson; Vaudeville Electric Cinema Ltd v Muriset. The intention of the person fixing it must be gathered from the purpose for which and the time during which use in the fixed position is contemplated: Hobson v Gorringe (1897) 1 Ch 182; Pukuweka Sawmills Ltd v Winger (1917) NZLR 81. If a thing has been securely fixed, and in particular if it has been so fixed that it cannot be detached without substantial injury to the thing itself or to that to which it is attached, this supplies strong but not necessarily conclusive evidence that a permanent fixing was intended: Holland v Hodgson; Spyer v Phillipson (1931) 2 Ch  183 at  209–210. On  the other hand, the fact that the fixing is very slight helps to support an inference that it was not intended to be permanent. But each case depends on its own facts. In Pukuweka Sawmills Ltd v Winger, a bush tramway introduced on the land for the temporary purpose of removing logs in the course of timber-getting and clearing, and capable of being moved from place to place, was held not to be a fixture; notwithstanding that a relatively secure degree of fixation was necessary whilst the tramway was in use in any particular place. On the other hand, a wooden building, resting on land by its own weight but brought there for the purpose of being permanently used as a dwelling house, was held in Reid v Smith 3 CLR 656; Austn Digest 176 to be a fixture.

In Belgrave Nominees Pty Ltd v Barlin-Scott Airconditioning (Aust) Pty Ltd [1984] VR 947 at 955, Kaye J stated: Even a slight fixing to the land is sufficient to raise the presumption that a chattel is a fixture. In those circumstances, the onus of proving otherwise rests upon the party so contending.

In National Australia Bank Ltd v Blacker (2000) 179 ALR 97, Conti J concluded that irrigation equipment resting on its own weight did not constitute a fixture. In reaching this decision, however, his Honour held that no single factor should be determinative. On the facts, the equipment was not attached to the land and was not heavy enough to raise the inference that it was intended to be permanent. His Honour stated at [16]: ‘… there is no single test which is sufficient to determine whether an item of property is a chattel or a fixture. It is clear that the court ought to have regard to all the circumstances of the case in making its determination …’. Similarly, in Loiero (aka Lero) v Adel Sportswear Pty Ltd [2010] NSWSC 113 at [11], Ball J noted that ‘the fact that the item is affixed to land is not determinative. An item may be a fixture where it simply rests on land by virtue of its own weight. A house resting on wooden piles is an obvious example … although even then there may be cases where a demountable house is not regarded as a fixture … Conversely, an item that is fixed to land may not be a fixture.’ In Agripower Barraba 125

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Pty Ltd v Blomfield [2013] NSWSC 1598, Black J in the New South Wales Supreme Court concluded that mining equipment should be treated as a fixture because of the extensive way in which they had been attached to the land as well as the fact that the cost of removing the equipment was high relative to their value and removal would occasion significant damage to the land. No contrary subjective intention could be demonstrated to displace the characterisation of the items as fixtures. This was overturned by the Court of Appeal where Bathurst CJ, Beazley J and Sackville AJA noted the declining importance of the degree of annexation, focusing instead upon the intention of the parties and the terms of the relevant mining leases. The court concluded that the seven disputed items should not be regarded as fixtures and therefore overturned the findings of Black J because the equipment could be readily dismantled and, despite its secure annexation, the intention of the parties was that the equipment would only endure for the duration of the mining leases and should not be permanently attached to the land. Where, however, there has been an annexation of the goods to the land, the greater and stronger the annexation and the more difficult it is to remove the goods without destroying them, the more likely it will be that the goods will be regarded as fixtures. This concept was discussed by the House of Lords in Elitestone Ltd v Morris [1997] 1 WLR 687, an extract of which is set out below.

—  Elitestone Ltd v Morris  — [1997] 1 WLR 687 Facts: Wooden bungalows were erected in an ‘idyllic rural environment’. They were resting on concrete pillars attached to the ground. The issue for the House of Lords was whether they were fixtures or whether they retained their individual character as chattels. The Court of Appeal held that the buildings were chattels. The court based this finding on the fact that the ‘common intention’ of the landowners and of the occupants was that the occupants should retain possession of the bungalows whilst the land upon which they stood would remain vested in the owner of the freehold. The House of Lords overruled the Court of Appeal and held that the bungalows were fixtures. Lord Lloyd of Berwick: … Thus the sole remaining issue for your Lordships is whether Mr Morris’ bungalow did indeed become part of the land, or whether it has remained a chattel ever since it was first constructed before 1945. It will be noticed that in framing the issue for decision I have avoided the use of the word ‘fixture’. There are two reasons for this. The first is that ‘fixture’, though a hallowed term in this branch of the law, does not always bear the same meaning in law as it does in everyday life. In ordinary language one thinks of a fixture as being something fixed to a building. One would not ordinarily think of the building itself as a fixture. Thus in Boswell v Crucible Steel Co [1925] 1 KB 119 the question was whether plate glass windows which formed part of the wall of a warehouse were landlord’s fixtures within the meaning of a repairing covenant. Atkin LJ said, at p 123: … I am quite satisfied that they are not landlord’s fixtures, and for the simple reason that they are not fixtures at all in the sense in which that term is generally understood. A fixture, as that term is used in connection with the house, means something which has been affixed to the freehold as accessory to the house. It does not include things which were made part of the house itself in the course of its construction. Yet in Billing v Pill [1954] 1 QB 70, 75 Lord Goddard CJ said: ‘What is a fixture? The commonest fixture is a house which is built into the land, so that in law it is regarded as part of the land. The house and the land are one thing.’ 126

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There is another reason. The term fixture is apt to be a source of misunderstanding owing to the existence of the category of so called ‘tenants’ fixtures’, (a term used to cover both trade fixtures and ornamental fixtures) which are fixtures in the full sense of the word (and therefore part of the realty) but which may nevertheless be removed by the tenant in the course of or at the end of his tenancy. Such fixtures are sometimes confused with chattels which have never become fixtures at all. Indeed the confusion arose in this very case. In the course of his judgment Aldous LJ quoted at length from the judgment of Scott LJ in Webb v Frank Bevis Ltd [1940] 1 ER 247. The case concerned a shed which was 135 feet long and 50 feet wide. The shed was built on a concrete floor to which it was attached by iron straps. Having referred to Webb v Frank Bevis Ltd and a decision of Hirst J in Deen v Andrews [1986] 1 EGLR 262 Aldous LJ continued: In the present case we are concerned with a chalet which rests on concrete pillars and I believe falls to be considered as a unit which is not annexed to the land. It was no more annexed to the land than the greenhouse in Deen v Andrews or the large shed in Webb v Frank Bevis Ltd. Prima facie, the chalet is a chattel and not a fixture. A little later he said: ‘Unit 6 was just as much a chattel as the very large shed was in the Webb case and the greenhouse in Deen v Andrews.’ But when one looks at Scott LJ’s judgment in Webb v Frank Bevis Ltd it is clear that the shed in question was not a chattel. It was annexed to the land, and was held to form part of the realty. But it could be severed from the land and removed by the tenant at the end of his tenancy because it was in the nature of a tenant’s fixture, having been erected by the tenant for use in his trade. It follows that Webb v Frank Bevis Ltd affords no parallel to the present case, as indeed Mr Thom conceded. For my part I find it better in the present case to avoid the traditional two-fold distinction between chattels and fixtures, and to adopt the three-fold classification set out in Woodfall, Landlord and Tenants, Release 36 (1994), vol 1, pp 13/83, para 13.131: An object which is brought on to land may be classified under one of three broad heads. It may be (a) a chattel; (b) a fixture; or (c) part and parcel of the land itself. Objects in categories (b) and (c) are treated as being part of the land. So the question in the present appeal is whether, when the bungalow was built, it became part and parcel of the land itself. The materials out of which the bungalow was constructed, that is to say, the timber frame walls, the feather boarding, the suspended timber floors, the chip-board ceilings, and so on, were all, of course, chattels when they were brought onto the site. Did they cease to be chattels when they were built into the composite structure? The answer to the question, as Blackburn J pointed out in Holland v Hodgson (1872) LR 7 CP 328, depends on the circumstances of each case, but mainly on two factors, the degree of annexation to the land, and the object of the annexation.

Degree of annexation The importance of the degree of annexation will vary from object to object. In the case of a large object, such as a house, the question does not often arise. Annexation goes without saying. So there is little recent authority on the point, and I do not get much help from the early cases in which wooden structures have been held not to form part of the realty, such as the wooden mill in Rex v Otley (1830) 1 B & Ad 161, the wooden barn in Wansborough v Maton (1836) 4 Ad & El 884 and the granary in Wiltshear v Cottrell (1853) 1 E & B 674. But there is a more recent decision of the High Court of Australia which is of greater assistance. In Reid v Smith [1905] 3 CLR 656, 659 Griffith CJ stated the question as follows: The short point raised in this case is whether an ordinary dwelling-house, erected upon an ordinary town allotment in a large town, but not fastened to the soil, remains a chattel or becomes part of the freehold. 127

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The Supreme Court of Queensland had held that the house remained a chattel. But the High Court reversed this decision, treating the answer as being almost a matter of common sense. The house in that case was made of wood, and rested by its own weight on brick piers. The house was not attached to the brick piers in any way. It was separated by iron plates placed on top of the piers, in order to prevent an invasion of white ants. There was an extensive citation of English and American authorities. It was held that the absence of any attachment did not prevent the house forming part of the realty. Two quotations, at p 667, from the American authorities may suffice. In Snedeker v Warring, 2 Kernan 178 Parker J said: ‘A thing may be as firmly fixed to the land by gravitation as by clamps or cement. Its character may depend upon the object of its erection.’ In Goff v O’Conner, 16 Ill 422, the court said: Houses in common intendment of the law are not fixtures, but part of the land … This does not depend, in the case of houses, so much upon the particular mode of attaching, or fixing and connecting them with the land, upon which they stand or rest, as upon the uses and purposes for which they are erected and designed.

Purpose of annexation Many different tests have been suggested, such as whether the object which has been fixed to the property has been so fixed for the better enjoyment of the object as a chattel, or whether it has been fixed with a view to effecting a permanent improvement of the freehold. This and similar tests are useful when one is considering an object such as a tapestry, which may or may not be fixed to a house so as to become part of the freehold: see Leigh v Taylor [1902] AC 157. These tests are less useful when one is considering the house itself. In the case of the house the answer is as much a matter of common sense as precise analysis. A house which is constructed in such a way so as to be removable, whether as a unit, or in sections, may well remain a chattel, even though it is connected temporarily to mains services such as water and electricity. But a house which is constructed in such a way that it cannot be removed at all, save by destruction, cannot have been intended to remain as a chattel. It must have been intended to form part of the realty. I know of no better analogy than the example given by Blackburn J in Holland v Hodgson, LR 7 CP 328, 335: Thus blocks of stone placed one on the top of another without any mortar or cement for the purpose of forming a dry stone wall would become part of the land, though the same stones, if deposited in a builder’s yard and for convenience sake stacked on the top of each other in the form of a wall, would remain chattels. Applying that analogy to the present case, I do not doubt that when Mr Morris’ bungalow was built, and as each of the timber frame walls were placed in position, they all became part of the structure, which was itself part and parcel of the land. The object of bringing the individual bits of wood onto the site seems to be so clear that the absence of any attachment to the soil (save by gravity) becomes an irrelevance. Finally I return to the judgment of the Court of Appeal. I need say no more about the absence of attachment, which was the first of the reasons given by the Court of Appeal for reversing the Assistant Recorder. The second reason was the intention which the court inferred from the previous course of dealing between the parties, and in particular the uncertainty of Mr Morris’ tenure. The third reason was the analogy with the shed in Webb v Frank Bevis Ltd [1940] 1 All ER 247, and the greenhouse in Deen v Andrews [1986] 1 EGLR 262. As to the second reason the Court of Appeal may have been misled by Blackburn J’s use of the word ‘intention’ in Holland v Hodgson, LR 7 CP 328. But as the subsequent decision of the Court of Appeal in Hobson v Gorringe [1897] 1 Ch 182 made clear, and as the decision of the House in Melluish v BMI (No 3) Ltd [1996] AC 454 put beyond question, the intention of the parties is only relevant to the extent that it can be derived from the degree and object of the annexation. The subjective intention of the parties cannot affect the question whether the 128

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chattel has, in law, become part of the freehold, any more than the subjective intention of the parties can prevent what they have called a licence from taking effect as a tenancy, if that is what in law it is: see Street v Mountford [1985] AC 809. As for the third of the reasons, I have already pointed out that Webb v Frank Bevis Ltd does not support the Court of Appeal’s conclusion, because the shed in that case was held to be a fixture, albeit a fixture which the tenant was entitled to remove. In Deen v Andrews the question was whether a greenhouse was a building so as to pass to the purchaser under a contract for the sale of land ‘together with the farmhouses and other buildings.’ Hirst J held that it was not. He followed an earlier decision in HE Dibble Ltd v Moore [1970] 2 QB 181 in which the Court of Appeal, reversing the trial judge, held that a greenhouse was not an ‘erection’ within section 62(1) of the Law of Property Act 1925. I note that in the latter case Megaw LJ, at p 187G, drew attention to some evidence ‘that it was customary to move such greenhouses every few years to a fresh site’. It is obvious that a greenhouse which can be moved from site to site is a long way removed from a two bedroom bungalow which cannot be moved at all without being demolished.

Commentary 3.3  Lord Lloyd of Berwick and Lord Clyde in Elitestone Ltd v Morris adopted the traditional approach to the determination of fixtures, noting that the two primary tests relevant to the consideration of whether goods had become fixtures were the degree of annexation and the object of annexation. Of particular relevance in this context was the fact that it was not possible for the house to be removed unless it was destroyed. In such a situation, despite the relatively slight nature of the affixation, his Lordship felt that it would be nonsensical to assume that the parties intended the house to remain as a chattel so that it could eventually be removed by destruction. Lord Clyde stated at 697: This is not simply a matter of counting the years for which the structure has stood where it is, but again of appraising the whole circumstances. The bungalow has been standing on its site for about half a century and has been used for many years as the residence of Mr Morris and his family. That the bungalow was constructed where it is for the purpose of a residence and that it cannot be removed and re-erected elsewhere point in my view to the conclusion that it is intended to serve a permanent purpose.

Their Lordships concluded that the degree of damage that would be caused if the cottages were removed was a highly relevant factor in the overall determination of whether the cottages should be treated as fixtures. Where removal would result in substantial destruction to the goods in issue, the parties could not have intended the house to retain its separate identity as a chattel. A similar approach was adopted in May v Ceedive (2006) 13 BPR 24,147 where the New South Wales Court of Appeal, approving the conclusions of the House of Lords in Elitestone Ltd v Morris, concluded that a house that had been attached to land had become a fixture because the dwelling was a solid-brick residence that could only have been removed by demolition. Santow JA concluded that a ‘common sense’ approach to the assessment suggested that the parties could not have intended the house to have retained its identity as a chattel and that once it was constructed, it had become affixed to the land. This decision can be contrasted with the subsequent decision of the New South Wales Court of Appeal in PricewaterhouseCoopers Legal v Perpetual Trustees Victoria Ltd (2007) NSWCA 271 where a ‘portable’ dwelling that had been attached to land was found not to have become a fixture because it was clear that this type of dwelling did not have to be 129

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demolished in order to be removed. The intention of the parties, taking into account the protective statutory provisions that precluded such homes from being treated as fixtures, was that the dwelling was to retain its separate identity as a chattel despite affixation. Ipp JA (with whom Giles JA and McClellan CJ concurred) stated at [61]: These matters tend to support an inference that the homes were intended to be fixtures. But, there are factors that tend in the opposite direction. These factors concern the intention with which the homes were placed upon the land, and the effect of the legislation governing manufactured homes installed on manufactured home estates.

In Darmanin v Cowan [2010] NSWSC 1118, Ward J discussed the issue of whether a cottage that was attached to land could be regarded as a fixture and ultimately concluded at [199] that where it could be shown that the cottage was ‘for the better use or enjoyment by the Cowans of the Cowans’ land, in the sense of furthering the use to which the land is put, then the cottage would be likely to be seen as a fixture; but if the intention was for the better use or enjoyment of the cottage itself (as distinct from the land), then the cottage would be likely to be held to be a chattel.’ The overall effect of these determinations suggests a decline in the significance being attributed to the degree of annexation test. This tendency was addressed by Kearney J in the Supreme Court of New South Wales in Palumberi v Palumberi (1986) ANZ ConvR 593 where his Honour stated at 596: It would seem from perusal of these and other authorities in the field that there has been a perceptible decline in the comparative importance of the degree or mode of annexation, with a tendency to greater emphasis being placed upon the purpose or object of annexation, or, putting it another way, the intention with which the item is placed upon land. This shift has involved a greater reliance upon the individual surrounding circumstances of the case in question as distinct from any attempt to apply some simple rule or some automatic solution.

See also Commissioner of State Revenue v Uniqema Pty Ltd (2004) 9 VR 523 at [47] per Ormiston JA. It would seem that the appropriate approach is to treat annexation as a starting point. While a strong annexation may indicate that the chattel has become affixed, the intention of the parties as evinced by the overall circumstances of the affixation may go against this. In Eon Metals NL v Commissioner of State Taxation (WA) (1991) 91 ATC 4841 at 4845, the court concluded that so long as the degree of annexation goes no further than what is required to achieve that object (on the facts, annexation occurred in order to steady the machinery so as to maintain quality control of the ultimate product and minimise safety risks), there is no need for a court to give annexation any particular or special regard in the overall assessment of whether a chattel has become a fixture. Similarly, in J & D Rigging Pty Ltd v Agripower Australia Ltd, Holmes JA, Applegarth and Bodice JJ held that the common law doctrine of fixtures does not require permanent annexation in order for a good to be regarded as a fixture. The court noted that under common law, if the intention is clear, placing the thing on the land for an indefinite or substantial period as opposed to temporarily may be sufficient to establish that the thing has become a fixture. On the facts of that case the Supreme Court concluded that the common law doctrine of fixtures should not be regarded as being imported into a statute that was concerned with the construction of contract because the wording of the statute went against it as it indicated that a temporary building or structure may be the subject of construction.3 3. [2013] QCA 406 at [27]. 130

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Object of annexation 3.4  Once it is clear that a chattel has been attached or affixed to land, it becomes necessary to consider the object underlying such an annexation. This involves a broad circumstantial assessment; it allows a court to take into account a variety of different factors that can assist in the judicial determination of whether, in the particular circumstances in issue, the parties truly intended the chattel to be henceforth treated as a part of the land to which it is affixed (or rests upon) or whether the chattel was intended to retain its separate existence. The following are relevant criteria to this assessment.

The intention of the affixer 3.5  A highly significant factor in the assessment of whether a chattel has become a fixture is the state of mind of the affixing party.4 This was discussed by the Northern Territory Court of Appeal in Pegasus Gold Australia Ltd v Mesto Minerals (Australia) Ltd [2003] NTCA 203. In that case, the court considered whether spare parts used to repair mineral processing equipment were fixtures or whether they kept their independent status as chattels. In his judgment, Mildren J concluded that where a common intention between the parties is objectively apparent, the common intention of the parties may become a critical factor. However, his Honour noted that on the facts, as is so often the case, evidence of this intention is not available and the courts must rely purely on the objective circumstances surrounding the annexation. This will include such things as the capacity to remove a chattel without causing significant damage to either the land or the chattel as well as the economic consequences of holding that a chattel has become a fixture. An extract of the judgment from Mildren J (at 206–7) follows: From the facts of this case, it is clear that the equipment was annexed to the land in such a way as to give rise to a presumption that the property in question had become a fixture and that the burden of proving otherwise rested upon the appellant. Secondly, although sometimes it is appropriate to take into account the subjective intention of a party fixing a chattel to land, usually the relevant test is to be determined objectively from such facts and circumstances that are apparent for all to see. I accept that as between, for example, a landlord and tenant, the actual intentions of the parties may well be critical if there was a common intention. But in this case, there are no findings as to what were the actual intentions of either party and therefore, the appropriate test as to the intention is to be ascertained to the objective facts and circumstances. The degree of annexation of a chattel to the land is of course relevant to the ascertainment of that intention. In this case, all of the mineral processing plant could be removed without causing any damage to the land. I also think it is significant that it was an economic proposition to sell and relocate that equipment, as was and is common mining industry practice, and that removal of the equipment would not damage it. It is also significant that there was a requirement, both under the terms of the lease and under the provisions of s 185 of the Mining Act 1980, that all the equipment be removed at the end of the lease. In my opinion, the purpose or object of the annexation was not for the better enjoyment of the mineral lease. The ore, once removed from the ground, in law became a chattel. The purpose of the equipment as a whole was to treat the ore in such a way as to separate the gold from it. Moreover, the equipment was extremely large and on the findings of the learned trial judge, would move and vibrate and therefore had to be fixed in such a way as 4. See Lynden Griggs, ‘The Doctrine of Fixtures: Questionable Origin, Debatable History and a Future that is Past!’ (2001) 9 Aust Prop LJ 1; M Haley, ‘The Law of Fixtures: An Unprincipled Metamorphosis?’ [1998] 62 Conv 137. 131

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to prevent that vibration. There is force in the argument that the individual chattels became part of a much larger piece of equipment, as the learned trial judge found, but this did not necessarily mean that the whole structure became a fixture. As was pointed out by counsel for the appellant, it was not vital that this equipment remained on the mineral lease. It could have been effectively located anywhere, although it was more economic to locate it as near as possible to the mine site in order to reduce the cost of transporting the ore. In my opinion, the  function to be served by annexing the plant to the soil was to stabilise it so that the equipment could be used as a piece of equipment.

See also Mahoney JA (at 9244–5) and Glass JA (at 9246) in NH Dunn Pty Ltd v LM Ericsson Pty Ltd (1979) 2 BPR 9241; [1980] ANZ ConvR 300; Ipp JA in Eon Metals NL v Commissioner of State Taxation (WA) (1991) 91 ATC 4841. In Agripower Barraba Pty Ltd v Blomfield [2015] NSWCA 30 at [76], Sackville AJA noted that the law of fixtures has ‘not stood still’ and that in adapting its principles to suit the exigencies of modern life, it has modified ‘the emphasis on the degree of annexation of chattels to the land in favour of the more amorphous concept of the purpose or object of annexation’. Subjective intention is, however, not relevant to the assessment of whether a chattel has become a fixture. What is relevant is the objective intention that is to be gathered from the circumstances applicable at the time of annexation rather than at any later point of time. As outlined by Santow JA in May v Ceedive Pty Ltd [2006] NSWCA 369 at [65]: [T]he intention which determines the question whether an object has, in law, become affixed to the land, or, to use the paraphrase emphasised in Elitestone Limited v Morris [1997] 1 WLR 687 at  690–1, 693, become part and parcel of the land by affixation is at least predominantly, ‘the objective intention of the person who brings the object onto the land and affixes it there’.

In Lictor Anstalt v MIR Steel UK Ltd [2014] EWHC 3316, Asplin J in the English High Court held that heavy steel mills installed on land with an operable life of up to 50 years, which could only be removed in exceptional circumstances, did constitute fixtures and should be regarded as a part of the land. The court noted the conclusions of the House of Lords in Elitestone and that of the New South Wales Court of Appeal in May v Ceedive, and held that on the facts, regard should be had to the actual intentions of the parties given that the mills were attached to the floor by means of heavy duty bolts cast in concrete and such that there was ‘nothing temporary about them’ (at [185]). The court noted that it would require specialist heavy machinery to remove the mills and any such removal would cause significant damage. Consequently, the court felt that the mills should be regarded as a part of the land as this was consistent with the overarching intention of the parties because the idea was to create a functioning, proximate steel mill with permanent or semi-permanent structures.

The nature of the chattel 3.6  Another important factor in the fixtures assessment is the nature of the chattel itself. Some chattels are of such a character that they can only be effectively utilised where they are attached to land and should not be treated as having an independent operation. On the other hand, some chattels will always retain an independent identity to that of the land to which they are attached, the purpose of the attachment being to maximise their operation or utility. The distinction between different categories of chattels was well illustrated in the decisions of Leigh v Taylor [1902] AC 157 and Re Whaley [1908] 1 Ch 615, where the difference between a fixture attached to the land for the purpose of enhancing the land and a fixture attached to the land for the purpose of enhancing the building were considered. 132

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In Leigh v Taylor [1902] AC 157, expensive tapestries were attached securely to the wall so that they could be properly viewed. The tapestries were never regarded as forming a part of the wall but, rather, were attached so that they could be effectively viewed. Lord Halsbury LC said (at 159): I suspect it is not the law or any principle of law, but it is a change in the mode of life, the degree in which certain things have seemed susceptible of being put up as mere ornaments, whereas at an earlier period under ruder construction rendered it impossible sometimes to sever the thing which was put up from the realty … Here we have objects of ornamentation of very great value. Undoubtedly their only function in life, if it may be so called, is the decoration of a room. Suppose the person had intended to remove them next month or the next year or what not, I do not know, notwithstanding the ingenious effort that has been made by Mr Levett, in what other way they could have been fastened than they were … It never was intended to remain part of the house; the contrary is evident from the very nature of the attachment, the extent and degree of which was as slight as the nature of the thing would admit of. Therefore, I come to the conclusion that this thing, put up for ornamentation and for the enjoyment of the person while occupying the house, is not under such circumstances as these part of the house.

By contrast, in Re Whaley [1908] 1 Ch 615, a valuable tapestry was attached to a wall in order to enhance the historical character of the room and to assist in the creation of a perfect ‘Elizabethan’ room. Neville J said (at 622): I think it is clear here that the decoration originally was intended to give the whole room the appearance of an Elizabethan room, that the whole decoration was in unison, and the ornaments were inserted primarily for the purpose of creating a beautiful room as a whole, and not intended for the mere display and enjoyment of the chattels themselves. I am not entirely unaffected in that consideration by the fact that part of this tapestry was placed over a part of the wall in which there either originally existing, or afterwards was made, a door, and that the tapestry was cut in order to enable the door to be used, which I must say, I think indicates that the owner was rather treating the tapestry as a decoration of the room than selecting a proper position for the display of this tapestry. In order to see what the testator meant by the will he made, one has to consider this; that an owner in fee, who attaches things even by way of ornaments to the freehold has no reason for desiring that they should continue as chattels rather than become part of the house, and the position of the tenant for life, or of a tenant for years is obviously of an entirely different character, because there the property going in different directions, the tenant for life is making a present to somebody else if he spends money in ornamenting the rooms which he occupies only as a tenant for years or for life.

The decision in Re Whaley [1908] 1 Ch 615 makes it clear that the tapestry was always intended to become a part of the house itself because the primary reason it was hung in the room was to decorate the room and enhance its Elizabethan character, rather than for the benefit of the tapestry as an independent chattel. See also Lord Chesterfield’s Settled Estates [1911] 1 Ch 237 where Grinling Gibbon’s carvings, which had been affixed to a suite of rooms 200 years earlier, were held to be fixtures.

Overall circumstances 3.7  The determination of whether a chattel was attached with the intention of becoming a

fixture must always be based upon a range of factors as applied to the specific circumstances in issue: Snowy Hydro Ltd v Commissioner of State Revenue [2010] VSC 221 at [26] per Davies J.

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In Palumberi v Palumberi (1986) NSW ConvR 55,287 at 56,671, Kearney noted that ‘It is universally recognised in the relevant authorities that the question is to be determined having regard to all relevant circumstances …’. In May v Ceedive Pty Ltd [2006] NSWCA 369, Santow JA stated at [65] that the intention is predominantly ‘the objective intention of the person who brings the object onto the land and affixes it there’ and this generally involves an assessment of all of the circumstances. Similarly, in Snowy Hydro Ltd v Commissioner of State Revenue [2010] VSC 221 Davies J at [23] held that there is ‘no one test that is conclusive of characterisation’. In TEC Desert Pty Ltd v Commissioner of State Revenue (2010) 273 ALR 134 at [24], French CJ, Heydon, Gummow, Crennan and Kiefel JJ approved of the degree of annexation and the object of annexation as two ‘considerations’, which were relevant to an overall determination of the intention of whether an object has become part and parcel of the land. Other factors relevant to the assessment of intention are: the status of the ‘affixer’; the interests, if any, of any third parties in the goods; the duration for which the chattel was ‘intended’ to be affixed; the existence (if any) of any statutory provisions or contractual terms regulating affixation; and the level of damage that any removal of the chattels might have upon the chattels themselves as well as the land. In Snowy Hydro Ltd v Commissioner of State Revenue [2010] VSC 221 at [27], after a full evaluation of the facts, the Victorian Supreme Court concluded that gas turbine generation units that had been bolted to land were fixtures, despite the fact that they functioned independently of each other, were reusable and could be relocated or independently sold. Davies J held that these units were bolted to the ground with the intention that they would remain on the land permanently as they were the most valuable part of the land and that as such, the objective intention of installing the units was ‘for the long term use of that site as a gas turbine electricity generation plant’ and this meant that the units should be characterised as fixtures. See also Lictor Anstaldt v MIR Steel UK Ltd [2014] EWHA 3316 (Ch). The cases and principles we have examined that have developed and applied the fixtures tests reveal that this area of law is in a constant state of development. Change and adaptation is an important quality given the rapid shift in technology, machinery and areas of conflict. As outlined by P Luther, in ‘Fixtures and Chattels: A Question of More or Less’ (2004) 24 (4) Oxford Journal of Legal Studies 597 at 618: The focus of the law will no doubt continue to shift as new areas of conflict come to the fore (as happened with disputes involving industrial machinery in the 19th century) and others fade into the background (as has happened with disputes arising out of family settlements in the course of the past century). New disputes will no doubt arise, as new types of chattel are affixed to land by new methods and for new purposes; judges will continue to conclude — to quote some of Blackburn J’s less formal words on the subject — that, ultimately, it is all ‘a question of more or less’.

Tenant’s rights to remove 3.8  A tenant holding a valid and enforceable lease will acquire a common law right, in the form of a legal chose in action, to remove any trade, domestic or ornamental chattels that have become fixtures during the period of time that the tenant remains in legal possession. As outlined by French CJ, Heydon, Gummow, Crennan and Kiefel JJ in TEC Desert Pty Ltd v Commissioner of State Revenue (2010) 273 ALR 134 at [26], where their Honours (quoting from the seventh edition of Megarry and Wade’s The Law of Real Property, Sweet & Maxwell, London, 2008, 1072) stated: Prima facie, all fixtures attached by the tenant are ‘landlord’s fixtures’, ie must be left for the landlord at the end of the lease. But important exceptions to this rule have arisen, and fixtures 134

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which can be removed under these exceptions are known as ‘tenant’s fixtures’. This expression must not be allowed to obscure the fact that the legal title to the fixture is in the landlord until the tenant chooses to exercise his power and sever it. The tenant may do so only during the tenancy or (except in cases of forfeiture or surrender) within such reasonable time thereafter as may properly be attributed to his lawful possession qua tenant.

This principle means that where a chattel has become affixed during the currency of the tenancy, the tenant retains a right to remove that chattel. If the right is not exercised, the chattel will remain a fixture because the existence of a right of removal does not mean, prior to the exercise of the right, that the chattel retains its separate identity.5 Subject to statutory provisions, where the chattel has become so affixed to the premises that it cannot be removed without either being destroyed or causing significant damage to the leased premises, the chattel will be treated as a landlord fixture and may not be removed by the tenant.6 The right of the tenant to removal of an affixed chattel will only be applicable to those chattels that have become affixed during the currency of the tenancy. It does not apply to chattels that became fixtures before the lease commenced or that have been affixed at the expiration of the lease. The right of removal will only apply to the original fixtures and it does not include any subsequent modification or addition.7 Once the right of the tenant to remain in legal possession of the leased premises expires, the tenant’s right to remove will expire and those affixed chattels that have not been removed will continue to be regarded as fixtures. In Agripower Barraba Pty Ltd v Blomfield [2015] NSWCA 30, the New South Wales Court of Appeal concluded that the tenant’s right to remove will endure during the currency of the lease and for a reasonable period after its expiration. On the facts the court noted that the right had clearly expired in 2008, making it unreasonable to assert the right a couple of years later when court proceedings were brought. It can be difficult to determine exactly when a lease has expired and therefore when a right of removal is extinguished as it depends upon the character of the lease in issue. Where a lease has formally expired, however, a tenant remains in possession of leased premises with the consent of the landlord, and it is clear that the premises have not been abandoned, the right of removal may continue to be exercised during the extended ‘lawful possession’ of the tenant.8 A tenant who does remove a fixture must repair any damage caused to the leased premises as a result of the removal and must leave the leased premises in a reasonable condition: Mancetter Developments Ltd v Garmanson [1986] QB 1212.9 The tenant’s right to remove fixtures is capable of being assigned. In Poole’s Case [1738] EngR 617; 90 ER 934 it was held that the interest that the tenant has in the fixtures is more than a bare right to remove and is capable of being assigned.10 In Commissioner of State Revenue v TEC Desert Pty Ltd [2009] WASCA 128, Wheeler JA noted at [98]–[100] that it was possible for a landowner to deal 5. See also North Shore Gas Co Ltd v Commissioner of Stamp Duty (1940) 63 CLR 2 per Dixon J; Vopak Terminal Darwin Pty Ltd v Natural Fuels Darwin Pty Ltd (2009) 258 ALR 89 at [66] per Lindgren J; Regreen Asset Holdings Pty Ltd v Castricum Brothers Pty Ltd Australia [2015] VSCA 286 at [123] per Warren CJ, Kyrou, McLeish JJA. 6. Bishop v Elliott (1855) 11 Ex 113; 156 ER 766; Vesco Nominees Pty Ltd v Shefan Hair Fashions Pty Ltd (2001) QSC 169. 7. Cottee Dairy Products Pty Ltd v Minad Pty Ltd (1997) 8 BPR 15,611. 8. New Zealand Government Property Corporation v HM & S Ltd [1982] QB 1145. 9. See also Empire Securities Pty Ltd v Miocevich [2008] WASCA 52 at [31] per Heenan AJA. 10. See also Eon Metals NL v Commissioner of State Taxation (WA) (1991) 91 ATC 4841. 135

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with its interest in fixtures on land owned by it separately from its interest in the balance of the land and that, in doing so, it may create in another an interest in the fixtures. While his Honour felt that the nature of that interest was not entirely clear, the cases that have most directly considered the question appear to lead to the conclusion that the ‘sale’ of an unsevered fixture gives rise only to an equitable interest in the purchaser. Similarly, McLure JA concluded that the right of a tenant to remove fixtures was an equitable right. His Honour noted at [226] that ‘considerable research has not unearthed any binding authority or detailed judicial consideration of the nature of the right of a tenant to remove tenant’s fixtures’. His Honour felt, however, that ‘there can be little doubt that it is a property right and is thus transferable. The controversy is whether the right constitutes an equitable interest in the land (either as an incident of the leasehold interest or otherwise).’ After examining all of the alternatives, his Honour concluded that a tenant’s right to remove fixtures gave rise to an equitable interest in the land to which it was attached. This would effectively mean that the interest that a tenant held in an unsevered fixture would have priority over a subsequent equitable interest in the land created by the freehold owner. On appeal, the High Court in TEC Desert Pty Ltd v Commissioner of State Revenue (2010) 273 ALR 134, French CJ, Gummow, Heydon, Crennan and Kiefel JJ held that the mining tenement involved did not constitute an interest in land, and this precluded the application of the doctrine of fixtures thereby making it unnecessary to evaluate the nature of a tenant’s interest in an unsevered fixture, although their Honours did note the ‘unsettled’ state of the law. Under common law, the right of the tenant to remove fixtures was always restricted to trade, ornamental and domestic fixtures, and did not include agricultural fixtures. Statutory provisions have been introduced in some states to extend the application of the tenant’s right to remove other fixtures so as to ensure that it extends to all forms of fixtures. See, for example, the Agricultural Tenancies Act 1990 (NSW) s 10; Property Law Act 1974 (Qld) s 155; and Landlord and Tenants Act 1935 (Tas) s 26. Section 155 of the Property Law Act 1974 (Qld) makes it clear in s 155(2) that the precondition to exercising the right are that the tenant has paid all the rent owing and satisfied all other obligations and given the landlord one month written notice of an intention to remove the fixture. If, upon receiving such notice, the landlord elects to purchase the fixture, the tenant may no longer remove it; however, the landlord is obliged to pay a fair value. In Victoria, s 154A of the Property Law Act 1958 has replaced the repealed s 28 of the Landlord and Tenant Act 1958 (Vic). Section 154A is, in substance, a similar provision to s 28 in that it confers a right to remove all fixtures, without excluding agricultural fixtures. Section 154A, however, goes further in that it allows a tenant to remove not only attached fixtures, but also any ‘renovations, alterations or additions’. It applies to tenants under preexisting leases that includes leases of Torrens title land. Further, s 154A(2) specifically requires the tenant to restore the premises to the condition they were in prior to the removal of the fixtures, fair wear and tear excepted, and includes an additional provision in s 154A(2)(b) which makes it clear that if the premises are not restored to the condition they were in prior to their removal, the tenant may choose to pay the landlord an amount equal to the cost of restoring the premises. Other relevant legislative provisions in this context include s 114 of the Mining Act 1978 (WA), which confers a right upon the holder of a mining tenement to remove any ‘mining plant’ that has been brought on to the land during the currency of the mining tenement or within three months following the expiration of the mining tenement. The High Court 136

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in TEC Desert Pty Ltd v Commissioner of State Revenue (2010) 273 ALR 134 concluded that this provision creates a separate statutory regime for the removal of materials that come within the definition of a ‘mining plant’ and that this regime was intended to exclude the general law respecting the affixture of chattels to the freehold. French CJ, Gummow, Heydon, Crennan and Kiefel JJ held at [35] that s 114 operates ‘upon the statutory assumption that what is a “mining plant” is not determined by the general law respecting the affixture of chattels to the freehold, of which they then became part and to which the general law respecting removal of tenant’s fixtures applies’.

Fixtures and third parties 3.9  In some situations, a third party may acquire a right to remove a chattel that has become a fixture. This may occur in a range of different circumstances where the third party holds a contractual right over the unsevered chattel. While it is not possible for a third party to hold any legal entitlement in such a situation, the equitable jurisdiction has recognised the enforceability of such a right. The classic scenario where this arises is where a chattel is hired or leased out and the hirer or lessee who acquires a possessory title proceeds to attach the chattel to land that belongs to another. In such a situation, the common law will assume that the chattel, as a fixture, is to be regarded as a part of the land. The equitable jurisdiction has, however, taken a different perspective. In Kay’s Leasing Corporation Pty Ltd v CSR Provident Fund Nominees Pty Ltd [1962] VR 429, a company hired manufacturing machinery from the plaintiff, Kay’s Leasing Corp, and attached it to its land such that it became a fixture. The land was then mortgaged to CSR Provident Fund Nominees Pty Ltd. The company defaulted on both the hire purchase contract and the mortgage. The issue was whether CSR could claim the machinery as it was a fixture and therefore a part of the land that was security for the mortgage or whether Kay’s Leasing Corp had any equitable right to reclaim the property. The Victorian Supreme Court held that Kay’s Leasing Corp had an equitable right to enter the premises and remove the machinery. Adam J (at 436) found that the right of re-entry contained in the hire–purchase agreement amounted to a ‘species of equitable interest which entitled [the finance company], as against the [mortgagor], to enter upon the premises and sever and remove the chattels that had become fixtures’. The equitable right arose from the contractual right and was not referable to the chattel itself that had, at law, become a part of the land. Hence, arguably, if the contract did not specifically allow for chattels to be seized upon breach, the equitable right may not have arisen. The hire purchase agreement entitled Kay’s Leasing Corp to seize the goods on default and the retention of title clause combined with the right to remove the goods was sufficient to generate an equitable title. This title is enforceable against the land, but may not be enforced against a bona fide purchaser for value without notice. As Adam J stated (at 438): … it seems clear that the mortgagee upon registration of its mortgage became entitled to treat as part of the mortgaged property any fixtures annexed thereto by the hirer, whether before or after the giving of the mortgage. Accordingly, as between such equitable interests as the plaintiffs had in the mortgaged land by reason of the annexation of plant and machinery thereto, and the mortgagee’s powers and rights as registered mortgagee, the latter were paramount.

The equitable right to remove is a very specific right and, where recognised, will allow the holder the right to access and remove the fixture. The right must be exercised within a 137

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reasonable period and could be extinguished where, for example, a mortgagee proceeds to enforce security and exercises a right of possession following a breach of the loan contract. In such a situation, a grantee could lose a right to enter mortgaged land and remove fixtures provided the mortgagee has exercised its powers, as outlined by Adam J in Kay’s Leasing Corporation Pty Ltd v CSR Provident Fund Nominees Pty Ltd [1962] VR 429 at 438, ‘in a manner inconsistent with the continued existence of the equitable interests’. In Sanwa Australia Leasing Ltd v National Westminster Finance Australia (1988) 4 BPR 9514, the court suggested, however, that an equity to remove goods could remain enforceable up until the point when the mortgagee either entered into a contract of sale to sell the mortgaged property pursuant to its power of sale or foreclosed over the property. Powell J held (at 9515) that ‘… as the plaintiff moved to exercise its right prior to their being overreached by the exercise, by the defendant [mortgagee], of its power of sale … the plaintiff ’s rights ought, prima facie, to be regarded as having retained their priority’. In Empire Securities Pty Ltd v Miocevich [2008] WASCA 52 at [28], Heenan AJA concluded that where a vendor expressly reserves in the agreement for sale a right to sever certain fixtures that otherwise may have formed part of the land, it will confer upon the vendor an enforceable right. This right must be ‘exercised within the time specified’ and a failure to comply would generate similar consequences to ‘the position of a tenant failing to exercise a right to remove tenant’s fixtures at the expiration of its term’.11 In Perron Investments Pty Ltd v Tim Davies Landscaping Pty Ltd [2009] WASCA 171 at [17] McLure JA, in discussing the possibility that a retention of title clause could confer an equitable interest upon the holder against chattels that had become affixed to land, noted that ‘the co-existence of contractual and proprietary remedies is well known to the law’. The equitable right to remove an affixed chattel is recognised as a form of equitable land interest because, until severed, the chattel cannot be regarded as having a separate existence.12 An equitable right to remove a fixture may arise where the owner of land to which a chattel has been affixed enters into a contract to transfer ownership of the land and retain title to the unsevered goods (a retention of title clause) or enters into a contract to transfer title to the unsevered goods and retain ownership of the land. In both cases, the courts have held that the contractual rights that the transferee acquires or that the transferor retains over the unsevered chattels amount to equitable rights to remove. The right acquired by the owner of land is sourced in the fairness obligations that arise between the contracting parties and is, therefore, not in the nature of a fee simple interest: see Melluish v BMI (No 3) Ltd [1995] Ch 90 at 117; Smith LJ in Hobson v Gorringe [1897] 1 Ch  182 at  193; Perron Investments Pty Ltd v Tim Davies Landscaping Pty Ltd  [2009] WASCA 171; and Commissioner of State Revenue v TEC Desert Pty Ltd [2009] WASCA 128 at [226] per McLure JA. 3.10  As outlined above, where a contract to transfer unsevered chattels that have been affixed to land is entered into, the courts have treated the contractual right of the transferee as an equitable entitlement. The scope and nature of the equitable right to remove was discussed by the Federal Court in Metal Manufactures Limited v Federal Commissioner of Taxation [1999] FCA 1712, a case involving a purported transfer of an unsevered chattel to a third party. An extract of this decision is set out below. 11. See also Re Samuel Allen & Sons Ltd [1907] 1 Ch 575; Re Morrison Jones & Taylor Ltd [1914] 1 Ch 50. 12. Commissioner of State Revenue v TEC Desert Pty Ltd [2009] WASCA 128 at [228] per McLure JA; Metal Manufactures Ltd v Federal Commissioner of Taxation [1999] FCA 1712 at [189] per Emmett J. 138

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—  Metal Manufactures Limited v Federal Commissioner of Taxation  — [1999] FCA 1712 Facts: MMT (the taxpayer) had been engaged for many years in the manufacture of energy cables, tubes, pipes and the business of electronic communications. ABM Pty Ltd, a wholly owned subsidiary of the taxpayer, was the owner of land which adjoined that of MMT. On this land, factory premises were erected and in these factories were various items of heavy plant and equipment (cables, tubes and lines) that were securely fixed to the floor of the factory premises. MMT subsequently entered into an agreement where they sold the equipment to ‘the bank’ and the bank leased it back in return for regular rental payments. MMT subsequently claimed these rental payments as tax deductions. The Commissioner of Taxation argued that they were not allowable deductions. It was argued that because the plant and equipment consisted of fixtures, the agreement between the bank and the taxpayer was ineffective to vest any title to the bank. The plant and equipment had become a part of the land. Thus, the Commissioner of Taxation argued that the payments made by MMT to the bank could not be characterised as (deductible) payments made under a lease for the purpose of securing the right to use property owned by the bank as lessor. MMT argued that the bank had acquired an equitable title to the plant and equipment despite the fact that it was affixed to the land. They argued that the equitable right of the bank arose from the fact that the bank had entered into a contractual arrangement, the Credit Purchase Agreement, whereby the taxpayer agreed to transfer ownership and that the plant and equipment would not become fixtures. Emmett J agreed with MMT and concluded that the bank did acquire an equitable title to the plant and equipment despite its affixation to the land. Emmett J: … The purpose for which the plant and equipment were annexed to the land, objectively ascertained, must be determined by reference to a number of the factors outlined above. The plant and equipment are extremely heavy items for the manufacture of tubes and pipes in the conduct of heavy industry. Whilst the plant and equipment may need to be replaced from time to time, in line with technological changes, there was no suggestion that the items in question were of a type inherently likely to become redundant within a fixed period of time. That situation may be contrasted with a situation where it is foreseeable that the presence of plant on a mining site would be limited because the mining site, by its nature, operates only for a limited period of time. In the present case, it is clear that properly maintained items of the kind in question could last indefinitely, although they could become redundant overnight by a major technological advance. Those considerations do not lead to any conclusion other than that the plant and equipment were installed with the intention that they would remain in place permanently or indefinitely, rather than for a purpose that had a particular, or in some way limited, life span. Certainly, it was necessary that the plant and equipment be attached to the land in a manner that would steady it, ensuring quality of the ultimate product, and for safety reasons. In that sense, the items were affixed for the better enjoyment of the items themselves, rather than for the better enjoyment of the land. However, there can be circumstances in which chattels may become affixed for the better enjoyment of land used for a particular use. Thus, a milk processing plant might constitute a fixture because it was annexed to the land for the better enjoyment or use of the land as a dairy processing plant — see National Dairies WA Ltd v Commr of State Revenue [1999] WASCA 152. Similarly, items of machinery in a factory plant may be fixtures because they were annexed for the better use and enjoyment of the land as a furniture factory — see Re Starline Furniture Pty Ltd (1982) 1 ACLC 312; (1982) 6 ACLR 312. Parts of the plant and equipment were installed on land belonging to a third party, namely Austral Bronze. That might suggest an intention that the items were not to become part of the land. However, Austral Bronze is a wholly owned subsidiary of the Taxpayer. In any event, 139

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the  relationship between the Taxpayer and Austral Bronze appears to be that of tenant at will and landlord. Thus, while the items may be removable as tenant’s fixtures they would nevertheless be fixtures. The law of fixtures may operate harshly. The doctrine of tenant’s fixtures ameliorates that harshness in certain circumstances. Thus, a tenant is given the right, upon the expiration of the tenancy, to sever items from the land that have been installed during the currency of the tenancy. The right stems not from any consideration that the tenant must not have intended that the items remain permanently on land belonging to the landlord, and therefore, the items must continue to be chattels. Rather, the principle recognises that, despite the fact that the tenant did not intend the item to become affixed to the land, the item did in law become a fixture. The fact that the plant and equipment was installed, in part, on land belonging to a third party does not assist in a determination of the objective intention with which the items were placed on the land. The evidence on the question of the practicality and viability of removing the plant and equipment demonstrates that it would be possible to remove the plant and equipment. The Tandem Wire Drawing Plants had, in fact, been removed to other locations. However, the removal was a time-consuming and difficult task. This tends to support the conclusion that the objective intention in affixing the plant and equipment on the land was that they remain there, and form part of the land. The land on which the plant and equipment was installed has been modified to adapt to the better use of the plant and equipment by the construction of footings and pitworks. The plant and equipment is more than merely bolted down in a way that could be easily reversed. Any removal will require jack-hammering concrete footings and grouting, dismantling part of the surrounding building (including cutting through cross-beams in the factory wall) and perhaps cutting through bolts which had seized up. Although strictly capable of removal, the degree of complexity, difficulty and the time involved indicates that the intention, objectively ascertained, was that the plant and equipment was to remain permanently or indefinitely. The degree of integration of the items with other aspects of the factory (furnaces and supporting services, for example) also indicates that the intention objectively ascertained was that it was to remain indefinitely. The degree of annexation of the plant and equipment is a very significant factor. It is difficult to see how items, the removal of which may require months to complete, considerable modifications to the buildings surrounding them (at least for the duration of the removal works) and digging up part of the underlying floor space, can still be said not to exhibit an objective intention that they were to become part of the land. Weighing up all the relevant factors, the circumstances surrounding the attachment of the plant and equipment to the land show that the plant and equipment were intended to become part of the land to which they were attached. They were fixtures as at 19 April 1988.

The effect of the arrangements The Commissioner contends that, because the plant and equipment were fixtures, the instruments were ineffective to achieve their stated objects. He says that the payments are therefore not lease payments or payments for hire because they were not for the use of chattels in the ordinary sense in which true lease or hire payments are for the use of chattels. Nor could the payments be characterised as being for the use of the land which the Taxpayer already owned, apart from the parcel owned by Austral Bronze. It is clear that the parties intended by the Credit Purchase Agreement that the bank would have rights in respect of the plant and equipment. Specifically, there can be no doubt that the bank acquired contractual rights in respect of the plant and equipment. Whether or not the Credit Purchase Agreement also secured to the bank some proprietary right in relation to the plant and equipment, the bank clearly had enforceable rights against the Taxpayer in respect of them. Those rights, if enforced, would have interfered with the Taxpayer’s right to unfettered use of the plant and equipment. 140

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Further, whether or not the plant and equipment constituted fixtures or chattels, the payments made pursuant to the Lease by the Taxpayer to the bank secured that unfettered right of use during the Term of the Lease. The same position applied in relation to any extension of the Term under the First Amendment or the Second Amendment. Even if the plant and equipment are fixtures, there can be no doubt that, as between the Taxpayer and the bank, the bank is entitled to require the Taxpayer to vest legal ownership of the plant and equipment in the bank. The promise for further assurance in clause 4.3.3 of the Credit Purchase Agreement would require the Taxpayer to do all such acts as may be required by the bank for further and more perfectly assuring the plant and equipment to the bank. Under clause 4.3.6, the Taxpayer warranted that the plant and equipment was severable from the premises and would not either at law or equity form part of the premises in the nature  of a fixture. The Taxpayer also warranted that title in and to the plant and equipment would at all times be and remain in the bank. Under clause 4.3.7, the bank was to have the right: ‘… to break open any gate, door or fastening and detach the Goods from any part of the Premises to which they may have become affixed.’ In addition, under the Landlords’ Waiver, each of the Taxpayer and Austral Bronze agreed that they had no right, title or interest to or in the plant and equipment and that they would not acquire any such right, title or interest. They agreed that no part of the plant and equipment would be treated as a fixture. They also agreed that the bank would have full right and licence to enter the Premises for the purpose of repossessing the plant and equipment and removing them from the Premises at any reasonable hour. They acknowledged |that the plant and equipment was, and was at all times to remain, the property of the bank. The Taxpayer and Austral Bronze had apparently granted a mortgage over their respective parcels of land to Permanent. Permanent also entered into the same arrangements with the bank. If the plant and equipment are fixtures, any interest of the bank could not be a legal interest since, as a matter of law, the plant and equipment would form part of the land to which they were attached. It is beyond question that the Taxpayer was intending to vest legal ownership in the bank. It agreed to do everything that was necessary to do so. If it has not achieved that stated object, it remained subject to a continuing obligation to do so. A court of equity would treat as having been done that which ought to have been done. I consider that the Credit Purchase Agreement was effective to vest in the bank an interest in the nature of property which should be characterised as equitable. That means, of course, that if a bona fide purchaser for value acquired the legal estate in the two parcels of land without knowledge of the bank’s interest, that interest may be defeated. On the other hand, if a third party acquired an equitable interest in the parcels of land, questions would arise as to priority between competing equitable interests. Such questions have arisen in the past and courts both in the United Kingdom and in this country have consistently held that a party in the position of the bank acquires an equitable interest — … On one view of the lease, standing alone, it has the effect of conferring on the bank the right, on default in the payment of the regular instalments of rent, to enter the Taxpayer’s premises and dismantle and remove the plant and equipment. However, the fact that the lease may be capable of having that effect cannot mean that the advantage that the Taxpayer sought by assuming the obligation under the lease, that it did not previously have, to pay the rental instalments, was to protect itself from what might happen if it failed to pay those instalments. The Taxpayer, so it might be said, cannot sensibly be regarded as having assumed a new obligation to pay rental instalments in order to obtain the advantage of protecting itself against detriment capable of arising if it were to fail to pay one or more of the instalments — see Eastern Nitrogen Ltd v FC of T (1999) 99 ATC 5163; [1999] FCA 1536 at paragraph 45. The consideration for which a tenant’s payment of rent is promised and made under a lease of land is governed entirely by the agreement. The Lease shows that the Taxpayer undertook 141

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to pay the regular instalments of Rent in return for the ‘leasing’, that is, possession of the plant and equipment, during the Term of the Lease. It did not undertake to pay the rental instalments for freedom from disruption of that possession by the bank. It might be said that the Taxpayer never needed to pay the instalments to acquire possession of the plant and equipment because it never lost that right — Eastern Nitrogen Ltd at paragraph 46. However, such an analysis ignores the effect of the Credit Purchase Agreement, which confers on the bank an equitable interest with respect to the plant and equipment. A question may arise as to whether that equitable interest was an interest in the whole of the land or only in that part of the land which consisted of the plant and equipment. The correct analysis does not matter. It is clear, however, that the bank did acquire a proprietary interest pursuant to the Credit Purchase Agreement. It is that interest that would give the bank the right to enter upon and sever the plant and equipment from the land, but for the rights conferred on the Taxpayer by the Lease. The concepts which appear to underlie the Arrangements are transfer of ownership of chattels by a seller to a buyer and then the hire by the buyer to the seller of the same chattels in consideration of a hiring fee. However, ownership was not intended to be conveyed by the Credit Purchase Agreement, no doubt because of stamp duty considerations. Rather, ownership, or legal title, was intended to be conveyed by delivery. That is clear from the language of clause  2.1.3, which provides that property is to pass by virtue of delivery being made in accordance with clause 2.1.1, and not by virtue of the Credit Purchase Agreement itself. Delivery is sufficient to convey legal ownership of chattels under the general law, although, of course, it is not sufficient to convey any legal interest in land. On the other hand, it was the common intention of the parties that, while title would pass to the bank, physical custody of the plant and equipment would not change. That is to say, it was intended that the Taxpayer would at all times retain dominion, possession and control over the plant and equipment, while ownership would pass by a constructive delivery. Common law concepts arising from bailment are steeped in Roman Law jurisprudence — see Coggs v Bernard (1703) 92 ER 107. Concepts of constructive delivery were recognised in Roman jurisprudence. The relevant concept is generally referred to as constitutum possessorium or ‘possessory agreement’, although that expression itself is not a classical one. While there is some considerable controversy as to whether or not there could, in Roman Law, be transfer of ownership by mere agreement, there is no doubt that Roman jurisprudence recognised a transfer of ownership by one party to another by mere agreement where the transferring party was to retain custody of the subject matter in a different capacity following the transfer of ownership. The classic example was where the seller of an object retains custody as hirer from the buyer. It is a sensible arrangement to avoid what would otherwise be a pointless handing over and taking back — see D 41.2.18.pr and the discussion in William W Gordon, Studies in the Transfer of Property by Traditio (University of Aberdeen, 1970) Chapter 1, at pp 13–35; W W Buckland, A Text Book of Roman Law (3rd ed 1966) at p 227; Barry Nicholas, An Introduction to Roman Law (3rd ed Clarendon Press, Oxford 1988) at p 119, and Ernest Metzger, A Companion to Justinian’s Institutes (Cornell University Press, 1998) at p 54. Under the common law, there are several ways in which there may be a change of possession without any change of the actual custody. Such a change of possession is sometimes spoken of as constructive delivery or delivery by attornment. An obvious instance is where a seller in possession assents to hold, on account of the buyer, a thing sold. When he or she begins so to hold it, that has the same effect as a physical delivery to the buyer or his agent and is an actual receipt by the buyer. That is so, whether the seller’s custody is in the character of a bailee for reward or of a borrower — Pollock and Wright, Possession in the Common Law (1888, reprinted 1990) at p 72 and N E Palmer, Bailment (2nd ed 1991) Chapter 20. If the plant and equipment are fixtures, of course, the constitutum possessorium contemplated by the Credit Purchase Agreement was ineffective to pass legal ownership. However, for the reasons I have indicated, I consider that the instruments were effective to create an equitable 142

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interest in the nature of property in the bank, which was sufficient to support the ‘leasing’ by the bank of the plant and equipment to the Taxpayer and the ‘taking on lease’ of the plant and equipment by the Taxpayer. …

Commentary 3.11  The decision in Metal Manufactures Limited v Federal Commissioner of Taxation examines the equitable rights that parties may acquire when contracting over chattels that have been affixed to the land. In this situation, while legal ownership cannot pass to a contracting party, Emmett J argued that equity may enforce the contractual right to the chattels. In this respect, Emmett J drew on Roman concepts of an agreement to transfer, on the one hand, and an intention to retain custody of goods, on the other. His Honour noted that it is well established that there may be a change of possession without any physical delivery of the goods and, in this respect, utilised the example of a seller in possession of goods agreeing to hold those goods for the buyer once sold. The conclusions of Emmett J with respect to the scope and enforceability of the equitable right to remove were not overruled by the Court of Appeal in the subsequent decision of Federal Commissioner of Taxation v Metal Manufactures (2001) 108 FCR 150. In that case, Sundberg J at [57] stated that as this issue was not raised on appeal, it was ‘unnecessary to consider the nature of any interest acquired by the Bank under the Credit Purchase Agreement’. Subsequent cases have, however, explored this issue further. In Eastern Nitrogen Ltd v Commissioner of Taxation (2001) 108 FCR 27 at 34, Carr J in the Full Federal Court held that a contract to sell plant and equipment, which had been affixed to the land, to financiers conferred on the financiers a ‘species of equitable entitlement’. Carr J noted that ‘the full panoply of equitable remedies would have been available to the extent necessary to protect the financiers’ equitable interest in the ammonia plant at any stage, whether in the face of a challenge to its equitable title or a denial of its rights of access’. In Vopak Terminals Australia Pty Ltd v Commissioner of State Revenue (2004) 12 VR 351, Ormiston JA (with whom Warren CJ and Buchanan JA concurred) at [80] held that the purchaser of land to which fixtures were attached could only retain an equitable entitlement to those fixtures when the land without the fixtures was subsequently sold to another party because it was not appropriate to treat the chattels as never having become fixtures. His Honour stated at [50]: ‘That which was treated by law as affixed to the realty ought not to be treated as detached therefrom merely by reason of some agreement inter partes, unless there is a clear doctrine of law or equity which gives rise to that legal consequence’. Ormiston JA went on to conclude that the interest that the parties would acquire where an agreement to transfer attached chattels existed was equitable in nature, amounting to a right to remove the chattel that has become affixed to the land. This was an interest in the land rather than the ‘hypothetical’ chattels. His Honour stated at [80]: A right to take away part of that which constitutes realty must be an interest in it, not an interest in some hypothetical chattels as they might thereafter become on enforcement of the right. … I am not persuaded that the interest here created was merely either a contractual interest or a personal right, so that I would conclude that there was an interest enforceable against the land and its owner for the time being. If that be so, then such an equitable right ought to be taken into account on assessing the amount for which the property might be sold.

In Commissioner of State Revenue v TEC Desert Pty Ltd [2009] WASCA 128, Wheeler JA at [86] noted that it is possible for a landowner to deal with its interest in fixtures on land 143

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owned by it separately from its interest in the balance of the land and that, in doing so, it may create another interest in the fixtures. His Honour went on to note that a contract for the sale of a fixture, by the owner of the land, appears to give rise to an equitable interest in the land. Subsequently, the High Court in TEC Desert Pty Ltd v Commissioner of State Revenue (2010) 241 CLR 576, found it unnecessary to consider the nature or efficacy at law and in equity of a sale by the owner of land, with retention of title to unsevered fixtures, or a sale of the unsevered fixtures with retention of the rest of the land. Their Honours noted the ‘unsettled state of authority’, and cited P Butt, Land Law, 6th ed, Lawbook Co, Sydney, 2010, pp 51–53 [3.19]–[3.22]. See also P Butt, ‘Selling Fixtures Separately from Land’ (2001) 75 (7) Australian Law Journal 405. In Epic Energy (Pilbara Pipeline) Pty Ltd v Commissioner of State Revenue (2011) 43 WAR 186, Buss JA at [173] concluded that the weight of authority favours the view that it is possible to pass an equitable interest in fixtures unsevered from the land on which they stand.13 The scope of the equitable right to remove can be a significant issue in the context of priority disputes. Where a person acquires an equitable interest that is enforceable against an ‘affixed’ chattel, that interest may be defeated by a bona fide purchaser of the legal (old title) estate for value without notice, but it will not be automatically defeated by the acquisition of a subsequent equitable estate. The prior equitable right to remove may be defeated where the subsequent interest is derived from a mortgage that pre-dates the contract because it has been held that a mortgage security will apply to all fixtures, even those that have become affixed after the date of the mortgage.14 The prior equitable right to remove may be enforced against a subsequent unregistered interest; however, where a third party acquires a registered interest over Torrens title land, the prior equitable right to remove will not be enforceable in the absence of fraud.15 The Personal Property Securities Act 2009 (Cth) (PPSA) does not apply to interests in fixtures: s 8(l)(j). Fixtures are defined in s 10 of the PPSA to mean goods, other than crops, that are affixed to land. In light of this, the PPSA does not affect the law relating to goods that become fixtures. Where, however, goods are affixed to or become commingled with other goods pursuant to the principles of accession, a security interest will continue into the accession: PPSA, s 88. The principle of accession sets out that ownership is established by assigning resources to the owner of some other thing that is already owned to which the goods are attached. Section 87 of the PPSA goes on to state: A security interest arising in an accession before it is affixed to goods has priority over a security interest in the goods as a whole. However, there are exceptions relating to interests in the whole created after the accession is affixed and before the security interest in the accession is perfected. A security interest arising in an accession after it is affixed will ordinarily be subordinate to an existing interest in the other goods (unless, for example, the holder of the existing interest agrees otherwise) and to a later interest in the other goods that arises before the interest in the accession is perfected: PPSA: ss 89, 90. 13. See also: Emanuel (Rundle Mall) Pty Ltd v Commissioner of Stamps (1986) 41 SASR 122; Melluish (Inspector of Taxes) v BMI (No 3) Ltd [1996] AC 454; Eastern Nitrogen Ltd v Commissioner of Taxation (2001) 108 FCR 27; Commissioner of Taxation v Metal Manufactures Ltd (2001) 108 FCR 150; Vopak Terminals Australia Pty Ltd v Commissioner of State Revenue (2004) 12 VR 351. 14. Meux v Jacobs (1875) LR 7 HL 481. 15. Cottee Dairy Products Pty Ltd v Minad Pty Ltd (1997) 8 BPR 15,611. 144

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Further, goods that become commingled with other goods no longer lose their separate identity as is the case with respect to accession principles. Section 99 of the PPSA specifically provides that a security interest in goods that subsequently becomes part of a product or mass continues into that product or mass unless it is not commercially practicable to restore the goods to their original state.

Other statutory provisions 3.12  In some states, specific legislative provisions have been introduced to protect the

equitable entitlement of a third party to remove a fixture. See, for example, the Chattels Securities Act 1987 (Vic) s 6 and the Chattels Securities Act 1987 (WA) s 6. Both of these provisions set out that goods which are subject to a security interest shall not become fixtures for the purpose of the security holder’s right to take possession, remove, or sell the goods. The Australian Consumer Law (ACL), which is set out in Sch 2 of the Competition and Consumer Act 2010 (Cth), may also be relevant where contracts that involve fixtures are found to come within the application of these provisions. Significantly, ‘consumer goods’ is specifically defined in s 2 to include goods that have become fixtures since the time they were supplied. Section 122 makes it clear that a compulsory recall of consumer goods may be made even if the goods have become fixtures since the time they were supplied. Section 141 sets out that a manufacturer of goods is liable to compensate a person if goods have been supplied in trade or commerce, the goods are ordinarily acquired for private use, or the goods have become fixtures and are subsequently destroyed or damaged because of a safety defect and that this has caused loss.

3.13  Revision Questions 1. What is the justification for a tenant retaining a common law right to remove fixtures and how long will it endure? 2. What is the relevance of a contractual relationship in circumstances where a chattel has been affixed to land? Can ownership of an ‘affixed chattel’ pass under a contract by constructive delivery? Explain the conclusions of Emmett J in Metal Manufactures Limited v Federal Commissioner of Taxation [1999] FCA 1712. 3. What is the rationalisation for the equitable jurisdiction accepting the validity, outside the context of a lease, of a special right to remove a chattel despite the fact that the chattel has been affixed? What is the scope of such a right? 4. What contractual terms need to be established in order for an equitable right to remove to be recognised? 5. Consider the following problems: A owns industrial equipment and B owns land that is mortgaged to C. A leases equipment to B pursuant to a lease contract. Under the terms of the contract, A can reclaim possession of the equipment if B defaults on payment. B subsequently affixes the industrial equipment to the land firmly intending that the equipment be used to enhance the use of the land. B defaults on his mortgage with C. Subsequently, C, exercising its mortgage security, sells the land to D. Does A have any right to reclaim its industrial equipment.

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Fixtures and the PPSA 3.14  The Personal Property Security Act 2009 (Cth) (PPSA) has no application to an

interest in land and this includes fixtures.16 A fixture for the purposes of the PPSA is defined as ‘goods, other than crops, that are affixed to land’.17 An important issue in this context is whether the test for determining whether a good has become a fixture under the PPSA is the same as that which applies under the common law, or whether a specific statutory test exists. This issue was examined by the New South Wales Court of Appeal in Power Rental Op Co Australia, LLC v Forge Group Power Ltd (in liq) (receivers and managers appointed) [2017] NSWCA 8, where the court considered whether the words ‘affixed to land’ in the definition of ‘fixtures’ in the PPSA incorporate the common law meaning of ‘affixed to the land’ (as was held by the primary judge), or whether the section created its own test based solely on whether the goods are physically affixed to land ‘in a non-trivial manner’. An extract of this decision is set out below:

  Power Rental Op Co Australia, LLC v Forge Group Power Ltd (in liq) (receivers and managers appointed)  [2017] NSWCA 8 Facts: Forge Group Power Pty Ltd (Forge) entered into a lease with General Electrical International Inc (GE) with respect to mobile gas turbine generators for use at a power station at Port Hedland in Western Australia (lease). GE did not register its interest under the lease on the Personal Property Securities Register (PPSR). Forge appoints administrators and is currently being wound up. The liquidators of Forge identified the lease as a ‘PPS lease’ and applied to the Court for declarations that the security interest under the lease had vested in Forge immediately before it entered into voluntary administration under s 267 of the PPSA. The question for the Court at first instance was whether the lease amounted to a PPS lease within the meaning of s 13(1) of the PPSA and this depended upon whether the mobile gas turbine generators had become affixed to the land. The PPSA has no application to a lease over land and this includes fixtures. If the generators were not affixed to the land and the lease was a PPS lease, it was undisputed that GE’s interest had vested in Forge. There were two issues considered by the primary Court: 1. Was GE was regularly engaged in the business of leasing the goods?; and 2. Were the turbines fixtures within the meaning of the PPSA? At first instance, the primary judge held that there was a PPS lease because GE was regularly engaged in the business of leasing goods and the turbines were not fixtures within the meaning of the PPSA. The turbines had therefore vested in Forge under s 267 of the PPSA. On appeal, Power Rental Op Co Australia, LLC and Power Rental Asset Co Two, LCC (Power Rental), who acquired the benefit of the lease from GE, challenged the conclusion by the primary judge that the turbines were not fixtures within the meaning of the PPSA. Ward JA: It is clear from the extrinsic materials to which I have earlier referred (and to which regard may be had in determining the legal and historical context in which words in the legislation are used — see  Bitumen and Oil Refineries (Aust) Ltd v Commissioner for Government Transport  (1955) 92 CLR 200;  [1955] HCA 1, following  Assam Railways and Trading Co Ltd v  Inland Revenue Commissioners  [1934] UKHL TC_18_509;  [1935] AC 445; [1934] All ER Rep 646, and more recently Alcan (NT) Alumina Pty Ltd v Commissioner

16. PPSA s 10. 17. PPSA s 10. 146

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of Territory Revenue (Northern Territory) (2009) 239 CLR 27; [2009] HCA 41 at [47]), that the ‘mischief’ that the PPSA was intended to address was the uncertainty and complexity of the various statutory and common law regimes applicable to security interests in personal property. The legislature sought to ameliorate this by providing a new national system of registration of interests of that kind and introducing a system of default rules to determine, among other things, priorities in respect of interests in personal property. In  Alcan, where the plurality in the High Court emphasised that the task of construction must begin with a consideration of the text itself, and that historical considerations and extrinsic materials cannot be relied on to displace the clear meaning of the text (citing  Nominal Defendant v GLG Australia Pty Ltd (2006) 228 CLR 529; [2006] HCA 11 at [22] (Gleeson CJ, Gummow, Hayne and Heydon JJ); at [82]–[84] (Kirby J);  Combet v The Commonwealth  (2005) 224 CLR 494;  [2005] HCA 61 at [135] (Gummow, Hayne, Callinan and Heydon JJ); Northern Territory v Collins (2008) 235 CLR 619; [2008] HCA 49 at [99] (Crennan J)), their Honours went on (at [47]) to emphasise that, while the language employed is the surest guide to legislative intention, the meaning of the text may require consideration of the context, which includes the general purpose and policy of the provision, in particular the mischief it is seeking to remedy. In the present case, both parties point to awkward consequences or difficulty that may attend their opponents’ preferred construction of ‘affixed to land’ in the definition of fixtures in s 10 of the PPSA. The practical difficulty that flows from the appellants’ ‘bespoke’ definition is, as the primary judge observed (though not basing his decision on this), the difficulty in determining what is or is not a ‘nontrivial’ attachment in any particular case. On the appellants’ ‘bright line’ test, the more trivial or superficial the form of attachment, the less certainty there might be for a third party seeking to determine whether something has or has not become a fixture. That said, the common law test of what amounts to a fixture is attended by its own difficulties (as recognised by Sackville AJA in Agripower Barraba at [76], his Honour there referring to the amorphous concept of the purpose or object of annexation). Where both definitions are capable of producing uncertainty in their application, little can be drawn from that in favour of one or other construction. In the present case, the extrinsic materials shed light on what was meant by the legislature in using the expression ‘affixed to land’ in s 10 of the PPSA. In CIC Insurance Ltd v Bankstown Football Club Ltd (1997) 187 CLR 384; [1997] HCA 2, Brennan CJ, Dawson, Toohey and Gummow JJ said (at 408): It is well settled that at common law, apart from any reliance upon  s 15AB  of the Acts Interpretation Act 1901 (Cth), the court may have regard to reports of law reform bodies to ascertain the mischief which a statute is intended to cure. Moreover, the modern approach to statutory interpretation (a) insists that the context be considered in the first instance, not merely at some later stage when ambiguity might be thought to arise, and (b) uses ‘context’ in its widest sense to include such things as the existing state of the law and the mischief which, by legitimate means such as those just mentioned, one may discern the statute was intended to remedy. Instances of general words in a statute being so constrained by their context are numerous. In particular, as McHugh JA pointed out in Isherwood v Butler Pollnow Pty Ltd (1986) 6 NSWLR 363 at 388, if the apparently plain words of a provision are read in the light of the mischief which the statute was designed to overcome and of the objects of the legislation, they may wear a very different appearance. Further, inconvenience or improbability of result may assist the court in preferring to the literal meaning an alternative construction which, by the steps identified above, is reasonably open and more closely conforms to the legislative intent. [my emphasis] [footnotes omitted] The distinction between legislative purpose and linguistic meaning as the determinative factor of whether regard may be had to extrinsic materials has been doubted (see James Hardie & Co Pty Ltd v Seltsam Pty Ltd (1998) 196 CLR 53; [1998] HCA 78 at 76-7 (Kirby J in dissent, with whose judgment McHugh J agreed)). Basten JA in Shorten v David Hurst Constructions Pty Ltd (2008) 72 NSWLR 211; [2008] NSWCA 134 in obiter, referring to the statement of principle by Mason P in Harrison v Melhem (2008) 72 NSWLR 380; [2008] NSWCA 67 to the effect that 147

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resort to a Minister’s speech to guide the meaning of legislation beyond identifying its purpose was not permissible, said (at [27]): The statement of principle set out by Mason P in Harrison … appears to accept that access may be had to extrinsic material to determine legislative purpose, but not if it directly addresses linguistic meaning. Thus, in the present case, reference might be had to the minister’s statement in order to determine the purpose which lay behind the introduction of the additional words, but might be inadmissible as an aid to understanding the meaning of the words. In Marshall v Director-General, Department of Transport [2001] HCA 37; 205 CLR 603 at [62], in a passage quoted with approval by the Court in Walker Corporation Pty Ltd v Sydney Harbour Foreshore Authority [2008] HCA 5; 82 ALJR 489 at [31], McHugh J stated that the duty of courts ‘when construing legislation is to give effect to the purpose of the legislation’, identifying ‘[t]he primary guide to understanding that purpose’ as ‘the natural and ordinary meaning’ of the statutory language.  It would seem that linguistic meaning and purpose are inextricably interwoven: accordingly a distinction of the kind identified in Harrison, if intended, is unattractive. It finds no basis in the statutory language of the Interpretation Act, nor, in my view, in High Court authority. However, in the present case, it is sufficient to say that the extrinsic material may be of assistance in understanding the purpose of the provision. Earlier, the High Court in  Re Australian Federation of Construction Contractors; Ex parte Billing (1987) 61 ALJR 39 at 39; [1986] HCA 74 at [4], in a joint judgment, said: Reliance is also placed on a sentence in the second-reading speech of the Minister when introducing the Consequential Provisions Act, but that reliance is misplaced. Section 15AB of the Acts Interpretation Act 1901 (Cth), as amended, does not permit recourse to that speech for the purpose of departing from the ordinary meaning of the text unless either the meaning of the provision to be construed is ambiguous or obscure or in its ordinary meaning leads to a result that is manifestly absurd or is unreasonable. In our view neither of those conditions is satisfied in the present case. In Wilson v State Rail Authority of New South Wales (2010) 78 NSWLR 704; [2010] NSWCA 198  at  [12], Allsop P (as his Honour then was) said of the use of extrinsic materials in the interpretive process (Giles, Hodgson, Tobias and Macfarlan JJA agreeing): … as is now beyond dispute, in construing an Act, a court is permitted to have regard to the words used by Parliament in their legal and historical context. Context is to be considered in the first instance, not merely when some ambiguity is discerned. Context is to be understood in its widest sense to include such things as the existing state of the law and the mischief or object to which the statute was directed. These are legitimate means of understanding the purpose of the Act and of the relevant provisions, against which the terms and structure of the provisions of the Act, as a whole, are to be understood. There are of course limitations on the permissible use of extrinsic materials. See Re Bolton; Ex parte Beane (1987) 162 CLR 514; [1987] HCA 12, where Mason CJ, Wilson and Dawson JJ cautioned at 518 as follows: The words of a Minister must not be substituted for the text of the law. Particularly is this so when the intention stated by the Minister but unexpressed in the law is restrictive of the liberty of the individual. It is always possible that through oversight or inadvertence the clear intention of the Parliament fails to be translated into the text of the law. However unfortunate it may be when that happens, the task of the court remains clear. The function of the court is to give effect to the will of Parliament as expressed in the law. In  Saeed v Minister of Immigration and Citizenship  (2010) 241 CLR 252;  [2010] HCA 23  French CJ, Gummow, Hayne, Crennan and Kiefel JJ said (at [31]) that, however clear or emphatic, statements as to legislative intention made in explanatory memoranda or by Ministers cannot overcome the need carefully to consider the words of the statute to ascertain 148

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its meaning. More recently, in Certain Lloyd’s Underwriters v Cross (2012) 248 CLR 378; [2012] HCA 56 French CJ and Hayne J acknowledged (at [25]) that appropriate use may be made of extrinsic materials but emphasised (at [26]) that the task of construction begins with the terms of the legislation and not from some a priori assumption about its purpose. A similar warning was sounded by Kiefel J (as her Honour then was) at [89]: It is legitimate to resort to materials outside the statute, but it is necessary to bear in mind the purpose of doing so and the process of construction to which it is directed. That purpose is, generally speaking, to identify the policy of the statute in order to better understand the language and intended operation of the statute. An understanding of legislative policy by these means does not provide a warrant for departing from the process of statutory construction and attributing a wider operation to a statute than its language and evident operation permit. It is not permissible for a court, by a process of statutory interpretation, in effect to substitute its own view of what should be the preferable ambit of legislation or to take it upon itself to re-write legislation in a way that corrects what is thought to be an inadvertent consequence of infelicitous language in a statute. However, in the present case, while the ordinary meaning of the word ‘affixed’ is not unclear (in the sense that it points to a form of attachment), what is uncertain is the nature and degree of attachment that will be sufficient for the purposes of the definition. The appellants do not suggest that a trivial or superficial attachment (say, for example, a helium balloon attached by string to the land) would be sufficient but nor do they accept the suggestion that what is required is a ‘substantial and enduring’ kind of attachment — indeed, they maintained that the ‘temporariness’ or otherwise of the attachment is an irrelevant factor to take into consideration. In oral argument, Senior Counsel for the appellants accepted that in determining whether the Turbines were affixed to the land (for the purposes of the bespoke definition for which they contend), the only factors out of the list of factors identified by Conti J in Blacker (at [13]–[14]; see [62] above) that would not be relevant would be, first, whether the attachment was for the better enjoyment of the property generally or was for the better enjoyment of the land and/or buildings to which the item was attached; second, whether the item was to be in position permanently or temporarily; and, third, other than to the extent to which it informs the physical connection, the nature of the property the subject of affixation (i.e., the first and third bullet points at [13] as well as, to a limited extent, the second) (see AT 13). The genesis of the exclusion of ‘fixtures’ from the PPSA, as made clear in the 2009 commentary to the revised bill, was the request made from the States that ‘fixtures’ be excluded. In the context of the description of ‘fixtures’ in the commentary to the initial draft, and the reference in 2009 to existing schemes dealing with fixtures, it is clear that what the legislature had in mind (in excluding in s 8(1)(j) interests in fixtures from the PPS regime) was the concept of fixtures as understood in, or consistent with, the common law doctrine of fixtures. The commentary in relation to the revised draft bill (when s 8(i)(j) was inserted) makes that clear — the reference there to ‘fixtures’ must be understood as meaning fixtures according to common law concepts, since there is no other meaning readily attributable to ‘fixture’ to which that reference could relate. The appellants’ response to the reliance placed by Forge Power on the extrinsic materials in this regard is that this goes only to the question whether fixtures were to be included or excluded from the PPSA and does not fix the metes or bounds of what would or would not be considered a fixture for the purposes of the PPSA. However, read as a whole it is apparent that when the proposed bill was initially to include ‘fixtures’ in the PPS regime it was the common law concept of fixtures that was in contemplation and that what the revised bill was intended to do was to remove ‘fixtures’ in that sense from the regime. That provides strong support for the construction adopted by the primary judge. The primary judge was in my respectful opinion correct when he considered that the clear demarcation in the PPSA between 149

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real property and personal property supports such a conclusion. There is nothing in the PPSA to support the suggestion that Parliament intended personal property that is affixed to land, but not in such a way as to become part of the land at common law, to be a species of property not governed by the PPSA. The presumption that Parliament intended, by the use of the term ‘fixtures’, to import the common law notion of affixation is consistent with such a conclusion. In that regard, I note that TEC Desert did not suggest that Parliament might not in a particular case be taken to have intended by the use of a particular term to import the established legal meaning of that term, simply that it could not necessarily be assumed that this be the case. Nor do I accept that J & D Rigging provides much assistance to the appellants insofar as there the Court was dealing with the test for determining what formed part of the land for the purpose of legislation governing payment of moneys in the building construction industry. Here, the words ‘affixed to land’, in the context of a definition of ‘fixtures’ in legislation which draws a distinction between real and personal property, may more readily be seen as falling within the first of the situations to which Applegarth J had regard (namely, where the importation of rules about fixtures in the law of real property may be justified in the context of a statute concerned with property and its ownership or statutes which impose obligations based on ownership – see  J & D Rigging at [19]). However, as Forge Power submits, it is not necessary to resort to such a presumption in the present case. The extrinsic materials make clear that the common law meaning of the term ‘fixtures’ was what was initially proposed to be included in and then removed from the PPS regime. Little assistance is gained from the innovative nature of the PPSA. The desire to establish a new national regime to deal with security interests in personal property does not of itself make it more or less likely that the definition of ‘fixtures’ was intended to be a bespoke definition. As to the contrary indications sought to be drawn by the appellants from the text of the legislation, the presence of a definition of ‘general law’ does not advance matters. True it is that the legislature could have defined ‘fixtures’ in a way that would have made explicit the nature and degree of affixation required for goods to become fixtures; or could simply have left the term undefined (on the assumption that the well-settled meaning of the term at common law would then be applied). However, the fact that Parliament chose neither of those alternatives does not mean that the construction for which the appellants contend was what was intended. Nor does the use of the word ‘affixed’ in the PPSA provision dealing with accession of goods provide any real assistance to the appellants. Forge Power argues that this is so for three reasons. First, the expression ‘accession’ is used in the PPSA in a different sense from the way in which the expression is used in the general law (the latter identifying a proprietary consequence for a certain type of attachment of one chattel to the other; the former identifying particular goods). Second, in contrast to the common law doctrine of accession where detachment is not practicable, it says that ‘accession’ is used in the PPSA in the sense of comingling (referring to the discussion of this in Fisher & Lightwood at [5.94]). Third, it argues that there is no inconsistency in the word ‘affixed’ being used with different senses in different contexts in the Act. Forge Power argues that the concept of accession in the context of goods attached to other goods, unlike the concept of fixtures, does not have a technical meaning in the law of property. In my opinion, the fact that goods will not amount to an accession for the purposes of the PPSA if they, and the goods to which they affixed, are both required or permitted to be described by serial number under the regulations (which is the effect of the PPSA provision) illustrates that the concept of affixation in the definition of ‘accession’ cannot be assumed to be the same as that when used in the definition of fixtures. Resort to the analogy of tenant’s fixtures also does not assist the appellants. The fact that, at common law, a tenant may at the end of the lease term remove fixtures that would otherwise have formed part of the land by reason of their affixation (and that such fixtures will be part of the land until severed in accordance with the doctrine) says nothing about the meaning of ‘affixed to land’ in the statutory definition of fixtures for the purposes of the PPSA. Textually and contextually, there are a number of indications that support the conclusion that the definition was intended to import 150

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common law notions of affixation. First, though I do not place any weight on this, it might well be thought that use of the verb ‘affix’ is intended to have a more technical meaning than that which would be conveyed by the more everyday language of ‘attach’ or ‘install’. Second, there is the demarcation in the PPSA between land and personal property, which the primary judge considered to be a critical pointer towards the construction he adopted. Third is the exclusion of ‘fixtures’ from the definition of land. This makes sense only if it is contemplated that what is expressly excluded from the definition of land (i.e., fixtures) would or might otherwise fall within the definition. Chattels that are affixed to the land but not so as to form part of the land at common law (i.e., that would fall within the appellants’ bespoke definition) would not need to be excluded from the definition of land. This is a strong textual indication to support the construction for which Forge Power contends and which his Honour found. The irony of the stance adopted by the appellants is that, if applied to its logical extent, arguably this would not bring the Turbines within the definition of a ‘fixture’ for the purposes of the Act because both forms of attachment (via the Seismic & Wind Kits and via the pipelines/conductors) would be attachments to ‘fixtures’ not to ‘land’ (the Seismic & Wind Kits and pipelines or conductors themselves being items ‘nontrivially attached’ to the land). When this was raised in the course of argument, the appellants suggested that the answer to this may be that the accession provisions of the PPSA make the accretions to the Turbines part of the Turbines themselves; whereas for Forge Power it was submitted that the natural resistance to the syllogism encompassed in the proposition that goods affixed to a fixture are not fixtures for the purposes of the Act illustrates that the appellants’ construction is not a workable construction (see AT 25.31–26.19; cf AT 43.30–45). Based on the second and third of the textual/contextual indicators referred to above, and the clear legislative intent discernible from the extrinsic materials, grounds 1 to 2 of the grounds of appeal are not made good and ground 3 therefore does not arise. Had it arisen, i.e., had the correct test been one of physical affixation to land alone (albeit of a non-trivial nature), and assuming that the appellants could overcome the problem that on that definition the Turbines would not be a fixture because they would be affixed to another fixture, one would be driven (as the appellants appeared to accept) to the common law test for a fixture at least insofar as that relates to the nature and degree of annexation of the goods to the land. I consider the application of the common law test in relation to grounds 4–5 below. For the purposes of ground 3, suffice it to say that if the test of affixation is one that looks to the substance, or enduring nature, of the affixation (which seems in practical terms to be what is encompassed by the reference to a ‘non-trivial’ attachment), i.e., to some form of attachment that warrants a conclusion that the item should be treated in the same way as land, then even on that definition I am not persuaded that his Honour erred in holding that the Turbines did not become fixtures for the purposes of the Act. That is because, even if one could have regard only to the factors considered by Conti J in Blacker (at [14]) as to the degree of annexation, in the present case: the mode of attachment was one which was intended to be reversible (via the demobilisation process), even though that process might be a ‘tricky’ one; both the Turbines and the Seismic & Wind Kits themselves were intended to be re-usable once disconnected from the power station; and the damage envisaged to be caused by removal of the Turbines seems to have been limited to the need to cut through the bolts by which the Seismic & Wind Kits were attached to the pedestals or concrete foundation (which damage would hardly be comparable to the value of the Turbines themselves). The need (if in fact there be any need) to remove the concrete slabs in order to restore the ground to its pre-existing condition does not necessarily mean that the land underneath the concrete foundations, once they have been removed, would be damaged in any relevant sense.

Did the Turbines become fixtures under the common law test The remaining grounds of appeal proceed on the basis that his Honour correctly held that the definition of ‘fixtures’ in s 10 imports the common law notion of fixtures. In that event, the appellants challenge his Honour’s conclusion that the Turbines did not become fixtures in accordance with 151

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common law concepts. The appellants do not cavil with his Honour’s summary of the applicable principles in this regard; rather, they complain as to the application of those principles. There is no dispute between the parties as to the applicable common law principles relating to the determination of when an item placed on land becomes a fixture. His Honour clearly had in mind those principles and that it was necessary to take into account all the circumstances of the case. His Honour described in some detail the Turbines and the processes of installation and commissioning that occurred. Thus the suggestion that his Honour failed to take into account, or failed sufficiently to take into account, the physical characteristics of the Turbines is not a fair or sustainable criticism of his Honour’s reasoning process. Nor can it fairly be said that his Honour failed (or failed sufficiently) to take into account the purpose of affixation or the ‘temporary’ nature of the affixation. Rather, his Honour’s review of the contractual provisions addressed the circumstances in which the Turbines came to be installed at the site, their function and the parties’ objectively ascertainable intentions as to the temporary nature of the affixation. True it is that his Honour expressed succinctly the 12 factors which had led to his conclusion, those factors drawing heavily on the matters to which Forge Power had pointed, and did not similarly itemise the list of factors put forward by the appellants. To the extent that the latter were the converse of that which had been put by Forge Power, and accepted by his Honour, it was not necessary to list those factors that did not lead his Honour to reach the conclusion contended for by the appellants. Subject to one qualification, to which I refer below, I do not accept that his Honour did not have regard to the various matters on which the appellants relied, in the course of explaining the conclusion reached as to the various factors identified by Conti J in Blacker. In so doing, it is not correct in my opinion to suggest that his Honour placed undue precedence on the temporary nature of the affixation and the expressed contractual intention that there not be a gift of the Turbines. Those were matters that it was open to his Honour to take into account and, in the present case, those were matters that pointed strongly to the Turbines not being fixtures at common law, particularly when at least one of the modes of affixation (the Seismic & Wind Kits) was clearly for the better use of the Turbines and not for the better enjoyment of the land. Turning to the three particular areas in which complaint of his Honour’s reasoning process is made, the first is as to the purpose of affixation. I accept, and this is the qualification to which I referred above, that the primary judge did not expressly address the significance of the pipeline connections when concluding that the Turbines were installed on the land for the better enjoyment of the Turbines themselves and not for the better enjoyment of the land. As earlier noted, there were two aspects of physical affixation relied upon by the appellants: the electrical/fuel connections and the connection by means of the Seismic & Wind Kits. The latter kind of connection is in my opinion clearly one that is for the better enjoyment or use of the Turbines themselves (i.e., to stabilise them in the event of a cyclone). That kind of connection does not (as made clear in the printing press case) indicate that the item has become a fixture. More problematic is the former kind of connection. Some of the pipeline/fuel connections were clearly for the better use or enjoyment of the Turbines (such as the connection through which electricity was delivered in order for the Turbines to be able to operate). However, some (such as those through which electricity generated by the Turbines was to be delivered to the power station grid) can only be seen as being for the purpose of the use of the land as a power station. There is, therefore, substance to the complaint by the appellants that the primary judge did not expressly take that aspect of the connection to the land into account. However, the nature and degree of that kind of affixation is not in my opinion so substantial or enduring as to warrant a finding (when weighed with the other relevant factors) that the Turbines thereby became fixtures. The connection was one effected through an attachment to pipelines/conductors, which connection was designed to be reversible or detachable (much as a plug in an electric socket would be) and not of a permanent nature. As to the ‘temporary’ nature of the power station, from an objective point of view this can readily be gleaned from the finite terms provided for under the DBOM and lease. The fact that the parties 152

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might have chosen to renew their arrangement beyond the option terms specified or indefinitely (i.e., to do so outside the terms of the relevant agreements) does not gainsay that, on the documentation, the lease was intended to be operative for a relatively short finite period. While the temporary nature of the affixation is not a determinative factor, it is not, as the appellants contended, an irrelevant consideration. Nothing in N H Dunn or Agripower Barraba suggests otherwise. In N H Dunn, what his Honour said in this regard (at 9243-4) was as follows: However, the maxim has not been applied rigidly in this way: In re de Falbe; Ward v Table [1901] 1 Ch 523 at 530;  Reid v Smith  [1905] HCA 54;  (1905-6) 3 CLR 656  at 670. It is, in my opinion, now accepted that a chattel may become part of realty notwithstanding that it is not, in any formal sense, annexed to it but rests on it merely by its own weight: Reid v Smith, supra, at 668, 669, 679. Even if a chattel is physically annexed to the realty, it may yet remain, at all times, personalty: Attorney-General of the Commonwealth v R T Co Pty Ltd [1957] HCA 29; (1957) 97 CLR 146 at 156-7: Anthony v Commonwealth (1973) 47 ALJR 83 at 89E: Australian Provincial Assurance Co Ltd v Coroneo [1938] NSWStRp 35; (1938) 38 SR (NSW) 700 at 712. But, if whether a chattel has become part of the realty is not to be determined by the simple test of annexation, no other simple test has, in my opinion, been generally accepted. It has been said that whether a chattel has become part of the realty depends upon the object and purpose of its annexation or juxtaposition to it: see Halsbury’s Laws of England 3rd ed, vol 23, p 490(b) and the cases there referred to; see also Commissioner of Stamps (Western Australia) v L Whiteman Ltd [1940] HCA 30; (1940-41) 64 CLR 407 at 411. But that leaves to be determined the question: with what object or purpose must the chattel be there in order that it be held part of the realty? In the Coroneocase, supra, at 712, Jordan CJ said: ‘The test of whether a chattel which has been to some extent fixed to and is a fixture is whether it has been fixed with the intention that it shall remain in position permanently or for an indefinite or substantial period:  Holland v Hodgson (1872) LR 7 CP 328 at 336; or whether it has been fixed with the intent that it shall remain in position only for some temporary purpose:  Vaudeville Electric Cinema Ltd v Muriset [1923] 2 Ch 74 at 87.’ I would, with respect, find difficulty in accepting that the matter can be tested  simply by reference  to whether the annexation to the realty is intended to be temporary or otherwise, particularly if the words ‘temporary purpose’ are to mean what, in Holland v Hodgson: see at 337, Blackburn J took them to mean. I doubt that such a view is consistent with, eg, Attorney-General of the Commonwealth v R T Co Pty Ltd (No 2) (1956-57) 97 CLR at 156-7; cf Kay’s Leasing Corporation Pty Ltd v CSR Provident Fund Nominees Pty Ltd [1962] VicRp 62; [1962] VR 429 at 433-4; or Anthony v The Commonwealth(1973) 47 ALJR at 89. Both Fullagar J and Walsh J held that the items there in question were not part of the realty, notwithstanding that they had obviously been annexed for a purpose which, at least within the meaning of the term in  Holland v Hodgson, was not a temporary purpose. [my emphasis] The words ‘simply by reference’ in the above passage makes clear that what his Honour was there talking about was the proposition that the temporary nature of the affixation might of itself be determinative and expressing difficulty with that proposition. His Honour was not there saying that the permanence or otherwise of the affixation was irrelevant. Blackburn J said in Holland v Hodgson (1872) LR 7 CP 328 at 334-335: There is no doubt that the general maxim of the law is that what is annexed to the land becomes part of the land; but it is very difficult, if not impossible, to say with precision what constitutes an annexation sufficient for this purpose. It is a question which must depend on the circumstances of each case, and mainly on two circumstances, as indicating the intention, viz., the degree of annexation and the object of the annexation. When the article in question is no further attached to the land than by its own weight it is generally to be considered a mere chattel. … But even in such a case, if the intention is apparent to make the articles part of the land, they do become part of the land. … On the other hand, an article may be very firmly fixed to the land, and yet the circumstances may be such as to shew that it is never intended to be part of the land, and then it does not become part of the land. … Perhaps the true rule is, that articles not otherwise attached to the land than by 153

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their own weight are not to be considered as part of the land, unless the circumstances are such as to shew that they were intended to be part of the land, the onus of shewing that they were so intended lying on those who assert that they have ceased to be chattels, and that, on the contrary, an article which is affixed to the land even slightly is to be considered as part of the land, unless the circumstances are such as to shew that it was intended all along to continue [as] a chattel, the onus lying on those who contend that it is a chattel. Sir Frederick Jordan, in Australian Provincial Assurance Co Ltd v Coroneo [1938] NSWStRp 35; (1938) 38 SR (NSW) 700 at 712, said the following (in a passage later quoted by Conti J in Blacker and set out by Sackville AJA in Agripower Barrabba): The test of whether a chattel which has been to some extent fixed to land is a fixture is whether it has been fixed with the intention that it shall remain in position permanently or for an indefinite or substantial period, or whether it has been fixed with the intent that it shall remain in position only for some temporary purpose. In the former case, it is a fixture, whether it has been fixed for the better enjoyment of the land or building, or fixed merely to steady the thing itself, for the better use or enjoyment of the thing fixed. If it is proved to have been fixed merely for a temporary purpose it is not a fixture. The intention of the person fixing it must be gathered from the purpose for which and the time during which the user in the fixed positions contemplated. If a thing has been securely fixed, and in particular if it has been so fixed that it cannot be detached without substantial injury to the thing itself or to that to which it is attached, this supplies strong but not necessarily conclusive evidence that a permanent fixing was intended. On the other hand, the fact that the fixing is very slight helps to support an inference that it was not intended to be permanent. But each case depends on its own facts. I do not accept in light of the above that the ‘temporary’ (or otherwise) purpose of affixation is an irrelevant consideration. In the present case, there was ample evidence to support the primary judge’s conclusion that the Turbines were installed for a temporary purpose. This evidence supported the conclusion that objectively they were not intended to become part of the land. Neither the scale of the ‘temporary’ power station, nor the fact that it was operated by a statutory corporation and was to supply the growing electricity needs of the region, gainsays the conclusion that the Turbines were installed on the land for a relatively short finite term and for an objectively temporary purpose (even though that term might have been extended and even if the use of the adjective ‘temporary’ in the DBOM might be thought to have been somewhat of a misnomer since it was expected that there would be a larger longer term power station to be built there). The analogy with tenant’s fixtures again does not in my opinion assist greatly. It is not in dispute that, while affixed to a landlord’s property, a tenant’s fixture is part of the property (though with a right at common law and/or by way of contract for such an item to be removed). However, the existence of a contractual right to remove the Turbines does not mean that, absent such a right, they would have become fixtures at common law; it simply indicates that the parties were turning their minds to the question of removal at the end of the term of the lease (in the context that some items of plant were or might be required to be handed over). Finally, insofar as the appellants accept that evidence (properly admitted) of the parties’ subjective intentions as to reservation of title and the like may be admissible but contend that provisions of the contract that display their common intention in that regard are not, I do not consider that there is any logic to that distinction. In N H Dunn, Mahoney JA said (at 9244-5): The actual or subjective intention of the parties and, a fortiori, of one of them, is, no doubt, not conclusive as to the status of the chattel. But I do not think that the intention of the owner of the chattel is irrelevant. In Reid v Smith (1905) 3 CLR at 680-1, O’Connor J cited with approval the following statement: ‘The intention of the party making the approval ultimately to remove it from the premises, will not, by any means, be a controlling factor. One may erect a brick or a stone house with the intention, after a brief occupancy, to tear it down and build another on the same spot, but that intention would not make the building a chattel. A destination which gives a moveable an immoveable character, results from facts and circumstances determined by the law itself and could never be established or taken away by the simple declaration of the 154

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proprietor, whether oral or written.’ In  Anthony v Commonwealth, Walsh J, in relation to a telephone line, including poles and other equipment, said: ‘If the question to be considered was whether an actual intention could be inferred that the poles and the line should become the property of the landowner, it seems plain in the circumstances that that question would be answered “no”. But, in my opinion, the question is not one of ascertaining the actual intention, but one of determining from the circumstances of the case, and in particular from the degree of annexation and the object of the annexation, what is the intention that ought to be imputed or presumed.’ There are, in my opinion, distinctions which must be made. Whatever be the correct formulation of the fact to be proved in such disputes, it is not whether the owner of the chattel or any other person subjectively intended that it should or should not become part of the realty. Therefore a statement of the intention as to that particular matter is not a statement tending, as such, to prove the fact to be proved. But that intention, as such, is not necessarily irrelevant. Whether the question of whether chattels have become part of the realty is a question of fact (see supra) or a conclusion of law, various matters have been seen as of assistance in the final determination of it. The period of time for which the chattel was to be in position, the degree of its annexation to the land, what was to be done with it, and the function to be served by its annexation, are all matters which have been seen to be relevant for this purpose. In particular circumstances, statements made by the owner of the chattel or of the realty as to his intention that the chattel shall or shall not be part of the realty may, if appropriately proved and evidenced, be relevant as facts probative of such matters and therefore as relevant in the determination of the ultimate fact to be proved. I do not see what was said by O’Connor J or Walsh J, in the case to which I have referred, as indicating a contrary view. In Blacker, Conti J said (at [11]–[12]): ‘There is an abundance of authorities generally to the effect that the relevant intention is to be determined objectively from such facts and circumstances that are “patent for all to see”, and not by reference to subjective intention. ‘Despite this, there are some modern authorities which would leave room for recourse to actual and hence subjective intention. This may be more accurately limited to the extent that it would assist the Court to determine the level of permanence or temporariness for which the item is intended to remain in position and the purpose to be served by its affixation or annexation: see N H Dunn Pty Ltd v L M Ericsson Pty Ltd (1979) 2 BPR 9241 at 9244–9245 where Mahoney JA referred to the observations of O’Connor J in Reid v Smith  [1905] HCA 54;  (1905) 3 CLR 656  at 680–681 and Walsh J in  Anthony v The Commonwealth (1973) 47 ALJR 83 at 89; see also Ball-Guymer v Livantes (1990) 102 FLR 327 and Land Law, supra para 227. Indeed Professor Butt in his article ‘Near enough is not good enough’ or ‘We know what you mean’ (1997) 71 ALJ 816 at 821 has commented that: ‘While private agreements concerning the intended status of an item as chattel or fixture are not permitted to prejudice the interests of third parties, it is difficult to see why the courts should discount the parties’ actual intentions where no third parties are involved.’ There, his Honour did not need to express a view as to that issue. Nor, ultimately is it necessary to do so in the present case, save to accept that the common intention of the parties, objectively ascertained, is capable (if appropriately proved as was the case here) of shedding light on the purpose of the annexation of the chattel in question. As to the third of the matters about which complaint is made (the physical characteristics of the Turbines) I have already noted the careful description by his Honour of the Turbines and the processes by which they were installed and commissioned and by which in due course they are to be demobilised. Taking into account the factors put forward on both sides, and accepting that there are obvious constraints on the ready mobility of the Turbines once they have been installed and commissioned on the site, I am not persuaded that the primary judge erred in concluding that the Turbines did not become fixtures in the common law sense.

For the above reasons, the appeal should be dismissed. 155

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Commentary 3.15  The Court of Appeal in Power Rental concluded that the definition of fixtures in the PPSA was to be interpreted in accordance with the common law meaning of the term. In discussing the purpose of the PPSA, Ward JA, with whom Bathurst CJ and Beazley P agreed, said at [83]: ‘The “mischief ” that the PPSA was intended to address was the uncertainty and complexity of the various statutory and common law regimes applicable to security interests in personal property. The legislature sought to ameliorate this by providing a new national system of registration of interests of that kind and introducing a system of default rules to determine, among other things, priorities in respect of interests in personal property.’ In essence, the purpose of the PPSA is to bring broadly and functionally defined security interests within a single, uniform national system. The PPSA applies to all security interests, regardless of form, which are defined broadly to include any interest arising under a transaction that in substance secures payment or performance of an obligation (PPSA, s 12). The court went on to outline three textual and contextual grounds for applying the common law test for fixtures in the PPSA. First, the specific use of the verb ‘affix’ within the PPSA was, the court felt, intended to have a more technical meaning than that which is applicable the words ‘attach’ or ‘install’. Second, the demarcation in the PPSA between land and personal property indicated a clear intention to exclude land and land interests from the application of the PPSA. Third, the exclusion of fixtures from the definition of land in the PPSA indicates an awareness of the fact that at common law, fixtures can come within the definition of land. Applying this test to the facts the court held that the turbines were not fixtures within the common law meaning of the term. The Court of Appeal focused upon the temporary nature of the turbines in light of the objective intention with which they were placed on the land. Despite the turbines being affixed to the land by means of electrical/fuel connections and seismic and wind kits, and the installation requiring concrete slabs and the use of a crane, it was held that the degree of annexation was not ‘so substantial or enduring as to warrant a finding … that the turbines thereby became fixtures’. This was the case despite the obvious constraints on the ready mobility of the turbines when installed and commissioned. Significantly, the Court of Appeal noted that the connection was designed to be reversible or detachable, and not of a permanent nature. The temporary nature of the turbines could also be gleaned from the finite terms in the lease which was intended to operate for a relatively short period of time. The court noted, however, that the existence of a contractual right to remove the turbines did not mean that, absent such a right, the turbines would have automatically become fixtures at common law. An overall assessment of the circumstances is still required. The decision is important because it clarifies the applicability of the common law fixtures test to personal property brought onto land under a PPS lease or other security covered by the PPSA.

The Enduring Relevance of the Common Law Fixtures Text 3.16  The tests for determining whether a chattel has become a fixture are fundamentally

ambiguous and uncertain, and provide little in the way of guidelines or indicia. This has meant that legal principle in this area can be unclear and unstructured. The centrality of the ‘purpose’ assessment is often overwhelmed by particularised factors that are extrinsic to its core focus. The difficulty, as Scarman LJ noted in Berkley v Poulett (1977) 241 EG 911 at [12], ‘is not the formulation’ of the tests in this area, but rather, ‘the application of the law’. Similarly, as noted by Sackville AJA in Agripower Barraba Pty Ltd v Blomfield [2015] NSWCA

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30 at [75], ‘The law of fixtures is in some ways a relic of a period when greater emphasis was placed on physical acts, such as the annexation of chattels to land, than on whether there were good commercial or policy reasons for concluding that those acts should produce changes in title’. Endorsing a transaction-specific approach to fixtures helps to promote flexibility when addressing new and changing circumstances. The law of fixtures has a familiarity that can sometimes obscure the fundamental social, financial and environmental consequences that necessarily flow from a determination that a chattel has become a fixture and further, a determination that a tenant or other contracting party retains a legal or equitable right to remove an affixed chattel from the land to which it is  attached. The enduring relevance of the doctrine of fixtures, as an emanation of the broader category of accessionary rights is that it functions as an efficient organising tool for resources and thereby supports the important organisational architecture of the property concept. As outlined by T W Merrill in ‘The Property Strategy’ (2012) 160 University of Pennsylvania Law Review 2061 at 2070: The concept of accessionary rights also means that ownership of a thing entails ownership of emergent resources that have a prominent connection to the thing. Ownership of land includes plants that grow on the land, ownership of animals includes offspring born to those animals, and so forth. If new resources prominently connected to the original resource were up for grabs by the first taker, or were distributed in equal parts to everyone, or were systematically taxed away by the state, then we would have departed from the property strategy. … Thus, accessionary rights are residual, just as management authority is residual. Indeed, some economists have defined property as residual claimancy, meaning that the owner is the one who gets the residual value after all other claims are satisfied. Although this characterization is too narrow, since it leaves the critical element of residual managerial authority out of the picture, it highlights an equally important attribute of the property strategy — often overlooked — which I have called accessionary rights.

See also L Butler, ‘Property as a Management Institution’ (2017) 82 Brooklyn Law Review 215, where the author notes that to promote system integrity, property’s normative framework needs to more effectively integrate perspectives that take greater account of the need for social cohesion, political and economic stability, and ecological consistency. Accessionary rights and fixtures can may undermine these objectives where they function in an arbitrary and unclear manner.

3.17 Revision Questions 1. What is the difference between a fixture and a chattel? 2. Is it possible to conclude that a chattel is a fixture where it has not been attached to land in any way but merely rests upon its own weight? 3. How does the degree of annexation test relate to the object of annexation test? 4. What is the three-fold classification adopted by Lord Lloyd in Elitestone Ltd v Morris and do you agree with it? 5. How is the nature of the chattel relevant to the assessment of the object of annexation test? 6. Why was it necessary to confer a right to remove upon a tenant? 7. Does the existence of a right to remove mean that the tenant retains a separate ownership in the affixed chattel? 8. How does the PPSA approach the law of fixtures? 157

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Boundaries: Land Abutting Water 3.18  The boundaries of land and water may be determined according to natural or

artificial measures. Where land does not abut water, the boundaries are determined in accordance with specific measurements set out in the certificate of title. Where land does abut water, so that the boundary is natural, particular rules have been developed in order to determine where the boundary line should be set when the natural boundaries shift.

Tidal water boundaries 3.19  The boundary line for land abutting the seashore, whether the land is Torrens title or

old title, is presumed, in the absence of a contrary intention (such as an express boundary set out within the certificate of title), to be the mean high water mark.18 The mean high water mark is assessed by averaging out the annual tidal level reached by the spring (the highest tide of each lunar month) and the neaps (the lowest tide of each lunar month).19 Land that exists beyond the high water mark (ie, the foreshore), is deemed to belong to the Crown. The territorial sea is regulated by state and territory laws and is subject to public rights of navigation and fishing.20 It is possible for the foreshore to be the subject of a private grant.21 In some states, the common law presumption of the mean high water mark is modified by statute. See, for example, the Land Act 1994 (Qld) ss 9 and 10 where it is stated that all land beyond the high water mark is the property of the State, including beds and banks of tidal navigable rivers, and if the boundary shifts over time due to gradual and imperceptible changes, the boundary will also shift. These provisions are discussed further in State of Queensland v Beames [2001] QSC 132 at [7], where Wilson J accepted that the Land Act 1994 (Qld) introduced a different rule to the common law to the effect that: The ‘high-water mark’ under the Land Act does not denote ‘the mean high water mark’. Rather it is defined as ‘the ordinary high-water mark at spring tides’ (Schedule 6 — Dictionary). For present purposes I accept that they differ in this way. (i) The mean high water mark is the line of the medium high tide between the highest tide each lunar month, being the springs, and the lowest tide each lunar month, being the neaps, averaged out over the year (Attorney-General v Chambers (1854) 4 De GM & G 206 at 215; 43 ER 486 at 489). (ii) The ordinary high-water mark at spring tides is the long term average of the heights of two successive high waters during those periods of 24 hours (approximately once a fortnight) when the range of tide is greatest at full and new moon.

In 2010, the Land Act 1994 (Qld) was amended with the aim of preventing landowners registering exclusive rights over beach areas, as well as other coastal and riparian areas, and providing greater certainty for defining the boundary between a landowner’s dry land and the wet land owned by the State. According to the Act, land is bounded by a tidal boundary, a natural feature approximating the tidal boundary as shown in the current survey plan will be the tidal boundary at law. Upon the registration of the first new survey plan, the tidal boundary will be located according to the natural feature that was first identified as the tidal boundary in an old survey plan or, in some cases, according to a 18. A-G (UK) v Chambers (1854) 4 De GM & G 206; 43 ER 486; Elliot v Morley (Earl) (1907) 51 Sol J 625. 19. Elliot v Morley (Earl) (1907) 51 Sol J 625. 20. Blundell v Catteral (1821) 5 B & Ald 268; 106 ER 1190; Butcher v Lachlan Elder Realty Pty Ltd (2004) 218 CLR 592; Northern Territory v Arnhem Land Aboriginal Land Trust (2008) 236 CLR 24. 21. Svendsen v State of Queensland [2002] 1 Qd R 216 at 221ff. 158

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specific boundary location criteria that ensures the boundary is landward of any tidal inundation. The natural feature cannot be the intersection of a tidal plane with land; for example, ‘mean high water springs’ or simply ‘high-water mark’. This means that in most cases, the State will own land that is on the water side of a tidal boundary as well as any fixed right line tidal boundary. Where the land is bounded by a non-tidal watercourse, a natural feature approximating the non-tidal boundary as shown in the current survey plan will become the non-tidal boundary. Following registration of any future survey plan, the non-tidal boundary will continue to be located according to its position before the registration of that plan. The boundary of a non-tidal lake will be the outermost extent of the bed and banks of the lake. This means that in most cases, the State will own land that is on the watercourse or lake side of a non-tidal boundary. The amendments do not alter the common law principle allowing a boundary of land to shift if the natural feature forming that boundary shifts by gradual and imperceptible degrees. Inter-tidal waters are subject to public and international rights to fish and navigate. In Attorney-General for British Columbia v Attorney-General for Canada [1914] AC 153, the Judicial Committee of the Privy Council at 170–1 stated that ‘the right of the public to fish in the sea has been well established in English law for many centuries and does not depend upon the assertion or maintenance in the Crown of any title in the subjacent land’. See also Harper v Minister for Sea Fisheries (1989) 168 CLR 314. Rights to fish and navigate in tidal and foreshore waters have an ambiguous common law heritage. As stated by Barrett J in Georgeski v Owners Corporation SP49833 (2004) 62 NSWLR 534 at [84] and quoted by French, Finn and Sundberg JJ in Gumana v Northern Territory of Australia [2007] FCAFC 23 at [89]: … it is not possible to make, with any degree of confidence, a complete and exhaustive statement of the common law rights of the public in relation to tidal waters and the foreshore. The matter is a ‘difficult question’ no less today than when so described by Lord Wright in 1935: Williams-Ellis v Cobb [1935] 1 KB 310 at 320.

Public rights to fish in inter-tidal waters may be abrogated or regulated by legislation.22 It is not, however, possible for a native title right to abrogate a public or international right of fishing or navigation. Where a native title right is inconsistent with the continuity of such rights, it does not, however, mean that native title is extinguished. French CJ and Crennan J in Akiba stated at [29]: Put shortly, when a statute purporting to affect the exercise of a native title right or interest for a particular purpose or in a particular way can be construed as doing no more than that, and not as extinguishing an underlying right, or an incident thereof, it should be so construed. That approach derives support from frequently repeated observations in this Court about the construction of statutes said to extinguish native title rights and interests.

In Gumana v Northern Territory of Australia [2007] FCAFC 23, the Full Federal Court held that fee simple land grants made under the provisions of the Aboriginal Land Rights (Northern Territory) Act 1976 (Cth), which conferred on the Land Trust fee simple rights that included rights of exclusive possession over the inter-tidal zone, excluded public rights to fish and, as such, public fishing rights granted pursuant to the Fisheries Act 1988

22. Harper v Minister for Sea Fisheries (1989) 168 CLR 314 at 330; Re MacTiernan; Ex parte Coogee Coastal Action Coalition Inc (2005) 30 WAR 138 at [88]ff and [105]ff; Northern Territory v Arnhem Land Aboriginal Land Trust (2008) 236 CLR 24 at [27]. 159

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(NT) had to be read down. French, Finn and Sundberg JJ made the following comments at [92]–[95]: … the question was what was the extent of those rights particularly in relation to the exclusion of others from entry upon, use of, and taking from, the land and space above it. The answer to that question is to be found not simply in the general law relating to what is ordinarily comprehended by an estate in fee simple in an inter-tidal zone or otherwise. It requires, first and foremost, a consideration of the Land Rights Act itself. It is this vital element which appears to be lacking in the majority judgment in Yarmirr FC 101 FCR 171. It has already been noted that the Native Title Act now defines foreshore ‘land’ as being ‘waters’, not land, for the purposes of that Act. Though the majority judgment in Risk 210 CLR 392 did not have to address the particular question of how the foreshore should be characterised for the purposes of the Land Rights Act, that judgment does with respect lend support for the view that that Act gives the converse characterisation of the foreshore where an estate in fee simple is granted to the low water mark. It is ‘land’ and not ‘waters of the sea’ (cf s 73(1)(d) of the Act) or the seabed. There are a number of textual and contextual reasons as to why this particular legislative choice appears to have been made and the consequences intended by it. First, the ‘buffer zone’ proposal as made by Woodward J and as varied in s 73(1)(d) of the Land Rights Act, presupposed a particular boundary from which the two kilometre zone would run. If the inter-tidal zone was for s 73(1)(d) purposes to be included within the ‘waters of the sea’ (ie the tidal water on it was ‘adjoining’ Aboriginal land), the two kilometre zone itself would either move with the tide, or else, paradoxically, be fixed at the high water mark. The significance of either possibility in areas known to have large tidal ranges is self-evident. Secondly, more importantly, the text, structure and context of the Act itself indicate that certain particular benefits were intended to be conferred upon or (in the case of the s  73(1)(d) legislative compromise) denied to, the Aboriginals by the grant to the low water mark. Considered in the context of the Second Report of Woodward J and of the declared beneficial purpose of the Act itself (reflected in its long title), the grant can properly be seen to represent a clarification of the rights of Aboriginals in relation to the inter-tidal zone (Second Report at [420]) which was itself a limited recognition of what they traditionally regarded as ‘their land’ (at [422]). While the legislative compromise in s 73(1)(d) denied a Land Trust the benefit of the inclusion of the two kilometre seaward buffer zone in the definition of ‘Aboriginal land’, it nonetheless still provided a means by which the Northern Territory legislature could still protect the ‘legitimate interests of Aborigines’ by ‘preserving their traditional fishing rights and their right to the privacy of their land’: Second Report [at 423]. The grant to the low water mark (as distinct from the high water mark) was in this regard some recognition of those ‘legitimate interests’ (both in relation to fishing and to excluding entry). Thirdly, in this statutory setting and context, s 70 is of decisive significance. As earlier noted, the powers of s 73(1)(b) and (d) were enlivened in the Northern Territory’s Land Act. There is nothing in that Act revealing a legislative intent that purports to exempt public rights to fish and to navigate from the prohibition imposed on entering Aboriginal lands (or for that matter closed seas) without a permit. On the contrary, the detail and breadth of the local Act suggests a legislative intent to deal comprehensively with lawful entry. In saying this we have not overlooked an argument advanced to the contrary effect by the Commonwealth that in entering onto Aboriginal land in the exercise of public rights to fish and to navigate, a person would be doing so in ‘accordance with a law of the Northern Territory’ (cf s 70(2A) and s 4(1) of the Land Act). We deal separately below with this. Having regard to the structure and purpose of the Land Rights Act, and to the context of the legislation particularly as evidenced in Woodward J’s two Reports: cf Risk 210 CLR 392 at [83]; the uncompromising language of s 70(1) does not admit of an implicit qualification that would exempt from its prohibition a person purporting to 160

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exercise a public right to fish or to navigate in the tidal zone. Rather, that language reflects and reinforces the extent of the Land Trust’s right to exclude from the inter-tidal zone which the Land Rights Act is to be taken as having intended it to have by virtue of a grant of fee simple under it. Save as modified by statute, it was an exclusive right.

These conclusions were upheld by the High Court in Northern Territory of Australia v Arnhem Land Aboriginal Trust (The Blue Mud Bay case) (2008) 236 CLR 24 (Gleeson CJ, Gummow, Hayne, Crennan and Kirby JJ, Kiefel J in dissent), which concluded that a fee simple grant issued under s  70(1) of the Aboriginal Land Rights (Northern Territory) Act 1976 (Cth) could confer rights that would preclude the holders of fishing licences issued under the Fisheries Act (NT) from entering waters that were the subject of such a grant. The High Court concluded that the right to fish was a public rather than a proprietary entitlement and as such, was capable of being abrogated by legislation. Their Honours felt at [27] that the Fisheries Act (NT) had actually replaced this public entitlement so that ‘the comprehensive statutory regulation of fishing in the NT provided for by the Fisheries Act has supplanted any public right to fish in tidal waters’. Subsequently, it was held by the Full Federal Court in Manado on Behalf of the Bindanbur Native Title Group v State of Western Australia [2018] FCAFC 238 that s 212 of the Native Title Act 1993 (Cth), which seeks to confirm that any existing general law rights of the public to access and enjoyment of such places as waterways, beds and banks or foreshores of waterways, coastal waters and breaches may continue to be enjoyed notwithstanding a determination that native title exists, could not be applied to a public right to access and enjoy what is exercised by way of custom or convention in the absence of any specific prohibition. Barker, Perry and Charlesworth JJ stated: While the common law recognises public rights to fish and to navigate above the high water mark, as confirmed in Yarmirr, and some ancillary rights associated therewith, there appears no basis upon which it can be said that the law recognises, in the sense of enabling such an asserted ‘interest’ to be vindicated, any right, entitlement or interest to roam across, let alone enjoy, unallocated Crown land whether above or below the common law or statutory high water mark.

Non-tidal water boundaries 3.20  Different boundary principles apply where a body of water is non-tidal in nature,

determined according to an assessment of the ebb and flow motion of the water. The ad medium filum aquae rule sets out that a non-tidal river running through the centre of adjoining land, whether Torrens title or otherwise, is presumed to be divided down the centre by adjoining landowners: Micklethwait v Newlay Bridge Co (1886) 33 Ch D 133 (CA); Lanyon Pty Ltd v Canberra Washed Sands Pty Ltd (1966) 115 CLR 342. The application of this presumptive rule may be rebutted by proving that the Crown did not intend to make an equal division. All Australian states other than Australian Capital Territory, South Australia and Tasmania have either modified or abrogated the ad medium filum rule. In Victoria the rule has been abrogated so that the riverbed (the alveus) bounding adjacent land is deemed to remain with the Crown, although an owner entitled to take water may exercise a right of access to that water over the Crown land: Land Act 1958 (Vic) s 385; Water Act 1989 (Vic) s 7(1); see also Crown Lands Act 1989 (NSW) s 172(7). In the Northern Territory and Western Australia the ad medium filum rule has been completely abrogated: Water Act 1992 (NT) s 9; Rights in Water and Irrigation Act 1914 (WA) s 15(1). In Queensland, the definition of the ‘outer bank’ has been revised completely. Section 5A of the Water Act 2000 (Qld), is extracted below. 161

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EXTRACT

Water Act 2000 (QLD) — s 5A 5A  Meaning of outer bank (1) The outer bank, at any location on one side of a watercourse, is — (a) if there is a floodplain on that side of the watercourse — the edge of the floodplain that is on the same side of the floodplain as the watercourse; or (b) if there is not a floodplain on that side of the watercourse — the place on the bank of the watercourse marked by — (i) a scour mark; or (ii) a depositional feature; or (iii) if there are 2 or more scour marks, 2 or more depositional features or 1 or more scour marks and 1 or more depositional features — whichever scour mark or depositional feature is highest. (2) Howe ver, subsection (3) applies if, at a particular location in the watercourse — (a) there is a floodplain on one side of the watercourse; and (b) the other side of the watercourse is confined by a valley margin. Examples of valley margin — hill, cliff, terrace (3) Despite subsection (1)(b), the outer bank on the valley margin side of the watercourse is the line on the valley margin that is at the same level as the outer bank on the other side of the watercourse. (4) Despite subsections (1) to (3), if under this part the chief executive has declared an outer bank on a side of a watercourse for any length of the watercourse, the outer bank on that side of the watercourse for that length is the outer bank as declared by the chief executive. (5) To remove any doubt, it is declared that an outer bank of a watercourse — (a) can not be, or be a part of, an in-stream island, bench or bar located in the watercourse; and (b) can not be generally closer to the middle of the watercourse than any part of an in-stream island, bench or bar located in the watercourse.

Water rights 3.21  The right of adjoining landowners to access water from a lake or river is regulated by

statute. The Crown owns the riverbed, which means that any access rights must be granted by the Crown and the old common law riparian rights that conferred usufructuary rights to access and use adjacent river streams have now been abolished.23 Statutory regulation of water rights was effected early in the twentieth century and the primary objective of the legislative framework was to vest ownership and control of all private water entitlements in

23. ICM Agriculture v Commonwealth (2009) 240 CLR 140 at [51]–[57] per French CJ, Gummow and Crennan JJ. 162

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the Crown with the aim of fostering great public accessibility. Most of the early legislation transferred usufructuary rights in flowing water to the Crown. For example, the Water Rights Act 1896 (NSW) s 2 set out that the ‘right to the use and flow and to the control of the water in all rivers and lakes which flow through or past or are situate within the land of two or more occupiers … shall … vest in the Crown’. See also Hanson v Grassy Gully Gold Mining Co (1900) 21 NSWLR 271. The National Water Initiative (NWI) was signed on 25 June 2004 and it introduced a range of policy objectives for the regulation and management of water rights. The NWI makes it clear at [28] that one of the primary policy objectives is to ensure that statutory water rights remain separate to and independent from land titles. For a full discussion on this see: D Connell, S Dovers, and R Quentin-Grafton, ‘A Critical Analysis of the National Water Initiative’ (2005) 10 Australasian Journal of Natural Resources Law and Policy 81. Under the current legislative framework, access rights to water and the proprietary status of those rights varies from state to state. For example, in Victoria, the Water Act 1989 s 15 sets out that the unauthorised taking of water constitutes a civil liability. Water rights are granted pursuant to specific licences. The relevant Minister is required to issue such licences subject to the creation of a sustainable water strategy and a long-term water resources assessment that is reviewable by the Environmental Protection Agency. Section  64L of the Water Act 1989 (Vic) entitles the Minister to issue a water licence for the purpose of irrigation or for other purposes and s 64M requires the Minister to take into account a range of factors including: • the impact that such rights may have upon other persons or the environment with particular regard to water-logging; • salinity and nutrient impact; • whether the proposed licence meets standard water-use conditions and is consistent with water-use objectives; • any comments (if relevant) from the Catchment Management Authority; and • any other issues that the Minister may deem relevant. The legislation also gives the Minister the power to suspend, revoke or cancel a water licence if the holder has failed to properly comply with one of the conditions of the licence or the Minister reasonably believes that the water has not been used on the specified land. In NSW, the Water Management Act 2007 (WMA) was introduced with the express objective in s 3 of ‘providing for the sustainable and integrated management of the water sources of the State for the benefit of both present and future generations’. The Act also lists a number of particular objectives including: (i) to apply the principles of ecologically sustainable development; (ii) to protect, enhance and restore water sources, their associated ecosystems, ecological processes and biological diversity and their water quality; (iii) to recognise and foster the significant social and economic benefits to the State that result from the sustainable and efficient use of water; and (iv) to provide for the orderly, efficient and equitable sharing of water from water sources. The WMA incorporates water management principles with a particular focus on environmental protection and it sets out in s 5 that the principles of adaptive management should be applied. The WMA expressly abolishes common law riparian rights to water 163

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pursuant to s 393, and s 392 vests in the Crown the right to the ‘control, use and flow’ of (i) all water in rivers, lakes and aquifers, (ii) all water conserved by works under the control of the Minister, and (iii) all water occurring naturally on or below the surface of the ground.24 Further, the Act separates the right to extract or divert the water (for which an access licence is required — see Part 2) and the right to use it for a particular purpose at a particular place (for which a water use approval is required — see Part 3). In Queensland, the Water Act 2000 now incorporates provision for the assessment of what are known as ‘water resource allocation dealings’ and these dealings are distinguished from administrative dealings. Any applications for new water licenses and dealings with existing licenses that have the potential to impact on other water users, water resources or the environment are considered water resource allocation dealings. These dealings will undertake a full and rigorous assessment including a public notification and submission process. Generally, a water license is required for taking or interfering in water in a watercourse, lake or spring for such purposes as stock or irrigation use for land that does not adjoin a watercourse, lake or spring, and industrial or commercial use. A water license is also required in some areas for overland flow water and for groundwater usage in groundwater management areas and subartesian management areas.25 The management of the water resources of the Murray–Darling Basin is also dealt with pursuant to specific legislation. The Basin extends across New South Wales, Victoria, South Australia, Queensland and the ACT. The regulatory developments culminated in the Water Act 2007 (Cth) which provides for the management of the Basin water resources. On 3 July 2008, the Commonwealth and Basin State Governments signed the intergovernmental agreement on Murray–Darling Basin Reform.26 The intergovernmental agreement is now given effect to in the Water Act 2007 (Cth), which focuses upon the management of the water resources of the Murray–Darling Basin. The primary object of this national legislation is to modernise Australia’s irrigation infrastructure, address over-allocation in the Murray–Darling Basin, reform the management of the Murray–Darling Basin and provide for further investment in water information. The Act adopts the Murry–Darling agreement in Part 1A, Division 2, and sets up a Murray–Darling Basin authority, and Part 1A, Division 3, gives the authority power to ensure water resources are managed in an integrated and sustained manner; and includes powers to conduct research, develop strategies and disseminate information about water usage, water rights and water management.27 The release of the South Australian Royal Commission Report into the Murray–Darling Basin found, inter alia, that the Basin Plan, calculated the level of water capable of being extracted from the Murray–Darling Basin without compromising the environment — that is, the environmentally sustainable level of take (ESLT) — had, however, been incorrectly calculated through a failure to utilise 24. Similar provisions exist in other states. See, for example, Water Act 2000 (Qld) s 26. 25. See Water Act 2000 (Qld), Part 3, Division 2, for an outline of water licensing requirements. 26. See . Accessed 14 June 2017. 27. For further analysis see: L Godden, ‘Water Law Reform in Australia and South Africa: Sustainability, Efficiency and Social Justice’ (2005) 17 Journal of Environmental Law 181; J Gray, ‘Legal Approaches to the Ownership, Management and Regulation of Water from Riparian Rights to Commodification’ (2006) 1 (2) Transforming cultures eJournal 64; S Hepburn, ‘Statutory Verification of Water Rights: The “insuperable” difficulties of propertising water entitlements’ (2010) 19 Australian Property Law Journal 1; M McKenzie, ‘Water Rights in NSW: Properly Property’ (2009) 31(3) Sydney Law Review 443. 164

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best available science, including climate change projections. Further, the Report found that the sustainable diversion limit (SDL) — the allowable level of take — will result in the river remaining over-allocated and incapable of achieving the purposes of the Water Act 2007, despite the large amount of public funds that have been made available to restore the Basin. In light of this, reform of the Murray–Darling Basin Authority is likely, in order to take lawful account of factual and scientific findings and in so doing, to recalculate the ESLT and the SDL on the basis of the best available science including climate change projections. See further: Murray–Darling Basin Royal Commission Report, 20 January  2019 (Commissioner Brett Walker SC).

The doctrine of accretion and avulsion 3.22  It is possible for a landowner to acquire land through a gradual, imperceptible and natural process of alluvion or dereliction by the sea. Under the doctrine of accretion, land that is acquired by either the natural deposit of ‘ooze, soil, sand and matter … in a long time cast up, deposited and settled by and from the flux and reflux of the tide, and waves of the sea, upon and against the outside and extremity of the land’ will pass to the landowner rather than the Crown and the legal boundary held by the landowner will be altered: Gifford v Lord Yarborough (1828) 5 Bing 163 at 171; 130 ER 1023. If the accretion is rapid and perceptible, the boundaries will remain unaltered and any land acquired will pass to the Crown as owner of the sea because the Crown is the ‘owner of the soil while it is covered with water’ therefore ‘it is but reasonable he should have the soil, when the water has left it dry’.28 Alternatively, where land is gradually and imperceptibly lost, through erosion and encroachment by the sea, the land that is lost will pass to the Crown as it is treated as part of the sea and the boundary of the landowner will be reduced to reflect the loss.29 Where, however, the loss occurs pursuant to a rapid and swift avulsion the boundaries will remain unaltered.30 3.23  The nature and scope of the doctrine of accretion was discussed by the High Court in Williams v Booth (1910) 10 CLR 341, extracted below.

—  Williams v Booth  — (1910) 10 CLR 341 Facts: The plaintiff was in the process of bringing land under the provisions of the Real Property Act 1900 (NSW) when an ancillary question as to whether the plaintiff held title to a salt lagoon known as the ‘Dewy Lagoon’ was raised. The plaintiff argued that the soil or bed of the lagoon was included in Crown grants issued to his predecessors in title. Alternatively, the plaintiff argued that if it was not included, it had since become his under the doctrine of accretion. The lagoon was a piece of water entirely surrounded by land. The evidence clearly showed that the lagoon was accessible for periods of time by the sea through a specific channel and at those times the tide would ebb and flow within it. At other times, a sand-bar existed across the mouth of the channel and the water remained cut off from the sea. One of the issues for the court was whether such a body of water could be amenable to the doctrine of accretion. The High Court concluded that the doctrine of accretion could not apply to a sudden and considerable alluvion as it does not constitute an accretion.

28. William Blackstone Commentaries, Bk 2 at 262; Williams v Booth (1910) 10 CLR 341. 29. Attorney-General v Chambers (1859) 4 De G & J 55; 45 ER 22. 30. Gifford v Lord Yarborough (1828) 5 Bing 163; 130 ER 1023; Southern Centre of Theosophy Inc v South Australia [1982] AC 706. 165

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Griffith CJ: … Thus, when the rule of medius filus aquae was applied to conveyances of land described as abutting upon a non-navigable fresh water river, the reason was that, the title of the soil of the stream ad medium filum being vested in the vendor, it was inferred that it was not intended that he should keep for himself the soil covered with water, which might be inaccessible and useless to him, but that it was intended that that soil should pass to the purchaser. What then is the meaning of the words ‘by that lagoon and the sea’ and ‘by that lagoon to the sea’ used in the grants, as applied to the subject matter? As a matter of English, and apart from any technical or artificial rules of construction, I cannot doubt that a plain person with an ordinary acquaintance with the English language would understand that the parties meant, in the one case, a line dividing the land granted from the lagoon and the sea, ie, the margin of the lagoon and the sea, and, in the other, a line dividing the land granted from the lagoon and extending along its margin to the sea. In both cases the continuity of the lagoon and the sea is assumed. As I have shown, the existing facts at the dates of the grants were consistent with this view. It follows that the waters of the lagoon and the land covered by them were not included in the grants, unless there is some artificial rule of construction which compels us to a different conclusion. Even if at the dates of the grants the continuity of the lagoon and the sea was in fact interrupted, I do not think that it would make any difference, since the intention of the parties is to be gathered from the language which they used. If that language purports to comprise land extending to, but not beyond, the margin of the water, the meaning of the words is not altered by showing that the quality of the water was misunderstood. If, for instance, the boundary of lands comprised in a grant is described as navigable tidal water, of the identity of which there is no question, the clear intention of the parties is that the margin shall be the limit, and the operation of the grant is not affected by showing that the water was not navigable, or not tidal. Is there, then, any rule of law which in the present case requires a different construction? I know of none. No authority was cited to us which even suggests the extension of the rule of medius filus to marine lagoons. The onus is on those who assert the extension. But, even if it were not, the consideration that such lagoons are substantially part of the sea, and may be of public use for fisheries or even for navigation, at some times if not all, would exclude the basis of the rule applicable to fresh water rivers. For these reasons I am of opinion that the grants in question do not include the bed of the lagoon. With regard to the alleged accretion, the case made is that the mouth of the lagoon is now permanently closed, so that it has become an inland water. The first answer to this argument is that it is not proved that the facts are so. Upon the evidence it is highly probable that the channel will, as heretofore, be opened and closed periodically, as occurred in 1905. But, even if it were shown to be permanently closed, I do not think that any case of accretion is made out. The law as stated by Blackstone (2 Bl Com, p 262), is that ‘if this gain be by little and little, by small and imperceptible degrees, it shall go to the owner of the land adjoining. For de minimis non curat lex. … But, if the alluvion or dereliction be sudden or considerable, in this case it belongs to the King; for, as the King is Lord of the sea, and so owner of the soil while it is covered with water, it is but reasonable he should have the soil, when the water has left it dry.’ The word ‘imperceptible’ refers to the slowness of the additions to the soil. Assuming, then, that a moment has arrived at which the mouth of the lagoon became permanently closed, the suggested accretion is not an addition of an imperceptible quantity of soil to the plaintiff’s land, but of an area of many acres occurring at the moment of permanent closure, so that, according to the plaintiff’s contention, on one day the land belonged to the King as Lord of the sea and on the next to the plaintiff. This is a sudden and considerable alluvion or dereliction, and does not operate to confer a title by accretion. The exact point is considered in an able argument in Mr Hall’s Essay (2nd ed, p 115, et seq) the reasoning of which is I think conclusive. The plaintiff, therefore, substantially failed in the purpose for which the suit was brought. The statement of claim, as already stated, prays a declaration of the plaintiff’s title to five parcels of land, but the allegations of fact have reference only to the two parcels bordering on the lagoon. 166

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3.24

On these pleadings it would, I think, be competent for the Court to declare the plaintiff’s title to a portion of the lands in dispute, although, strictly speaking, it may be doubtful whether the plaintiff could claim such a declaration as of right. Probably he could not do so without amendment. It is not, however, desired by either party to take advantage of any technical points. It appeared in the course of the evidence that the area covered by water is now much less than at the dates of the grants, and it is obvious that a title by accretion might be set up, successfully or not, by the plaintiff in respect of the dry land so left by the salt water. But no distinct case founded on such a title was made by the pleadings, nor was the evidence addressed to this point. It may be that, with respect to some of the additions, the plaintiff is entitled to follow the margin of the lagoon as it imperceptibly receded, while as to others, which may have been sudden additions to the land, as, eg, on the occasion of the Dandenong Gale, he is not so entitled. These matters can, if desired, be investigated in the present suit, by way of inquiry or otherwise, but for that purpose an amendment of the pleadings would be necessary. Under these circumstances, I think that complete justice will be done by discharging the judgment appealed from, and ordering that upon payment of the costs of the suit subsequent to the statement of claim the plaintiff shall be at liberty to amend as he may be advised, and that in default of amendment within 30 days after the allocatur the suit be dismissed with costs. [Barton and O’Connor JJ agreed.]

Commentary 3.24  The High Court in Williams v Booth made it clear that the doctrine of accretion is a common law principle that is only applicable to gradual and imperceptible alluvions by the sea and not sudden and dramatic ones. Griffith CJ specifically noted at 346 that the word ‘imperceptible’ refers to a slow or gradual addition to the soil that would preclude the sudden closure of a sea channel by a significant shift in sand and soil. This principle remains good law although it is possible to modify or exclude the application of the doctrine of accretion through clear words within a grant where the land is described as ‘abutting the foreshore as it exists from time to time’. In Southern Centre of Theosophy v South Australia [1982] AC 706 at 714, the Privy Council concluded that the rationale underlying the need for accretion to be ‘imperceptible’ is that the rule is required for the ‘permanent protection of property’ and ‘in recognition of the fact that a riparian property owner may lose as well as gain from changes in the water boundary or level’. In this respect, a clear distinction should be made between imperceptible change and sudden, swift change. By contrast, where the doctrine of ‘avulsion’ applies, the general principle is that the property will remain with the original adjoining landowner where the avulsion is rapid and swift. Lord Wilberforce in Southern Centre of Theosophy v South Australia held that the common law doctrine of accretion would be applicable to alterations to a land/water boundary and may also be extended to apply to alterations resulting as a consequence of other factors such as wind or air. His Lordship felt that there was no reason to confine the doctrine of accretion to changes effected solely as a result of fluvial action. On the facts, of Southern Centre of Theosophy v South Australia, the Privy Council concluded that the doctrine of accretion was applicable because the gradual recession of the lake and the deposit of sand was imperceptible.31 The issue of what constitutes an ‘imperceptible’ accretion and what constitutes an avulsion will depend upon circumstantial analysis and is therefore a question of fact. As outlined by the court in Hugh

31. See also Coulson and Forbes, The Law of Waters, 6th ed, Sweet and Maxwell, London, 1952. 167

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and Tessa Prescott v Robert John Anderson (Rivers, Waterways and Foreshore: Accretion and diluvion) [2009] EWL and RA 2007_ 0760 where the court noted: Drawing together these legal strands, it is therefore in principle possible to make a clear distinction between two interpretations ie what is a gradual and imperceptible process of nature in the movement of water, being imperceptible in its progress — in other words being too slow to be perceived, and the movement of water which is subject to a substantial, recognisable, and sudden change. As there is, however, what has been described as a ‘grey’ area between what is imperceptible and what is considered to be an avulsion then the issue of imperceptibility is always considered to be a question of fact. In Lyn Shellfish Ltd v Loose [2016] 2 WLR 1126, at [79] Lord Neuberger and Lord Carnath, in examining an exclusive prescriptive right (ie an exclusive right obtained through a long period of use) to take cockles and mussels from a stretch of the foreshore on the east side of the Wash, on the west coast of Norfolk, noted that there was no reason why the doctrine of accretion outlined in Williams v Booth should not apply as equally to rights in land as it does to ownership of land.

See also Loose v Lynn Shellfish [2017] AC 599 where Lord Neuberger and Lord Carnwath held, in applying the principles outlined by Lord Wilberforce in Southern Centre of Theosophy, that the doctrine of accretion only applies where the actual change to the boundary is gradual and imperceptible, and not where ‘there is a specific moment in time when the whole of a sandbank becomes attached to the foreshore’ because this represents a single event rather than a gradual process. There has also been some legislative development to modify the doctrine of accretion. See, for example, Coastal Management Act 2016 (NSW) s 28, which sets out that a court has no jurisdiction to make a declaration that would increase the area of land to the landward side of the water boundary if a perceived trend by way of accretion is not likely to be indefinitely sustained by natural means, or, as a consequence of making such a declaration, public access to a beach, headland or waterway, will be restricted or denied. This provision applies to land that is defined by reference to a high water mark and is within a coastal zone of New South Wales, or that adjoins the tidal waters or Sydney Harbour or Botany Bay, or their tributaries.

3.25 Revision Questions 1. What is the boundary rule for land abutting tidal water? 2. If the foreshore is vested in the Crown, what rights do abutting landowners have to access those waters for the purpose of fishing or navigation? 3. In Gumana v Northern Territory of Australia [2007] FCAFC 23, the Full Court of the Federal Court concluded that a fee simple grant conferred upon a Land Trust for land abutting tidal waters extinguished any public rights to access those waters for fishing and navigation. What was the rationale for this decision? 4. How did the High Court in Northern Territory v Arnhem Land Aboriginal Land Trust (2008) 236 CLR 24 respond to this? 5. Explain the ad medium filum aquae rule and the legislative modifications in Victoria. 6. Why is it important to prove under the doctrine of accretion that land is gradually and imperceptibly lost? What is the difference between the doctrine of accretion and the doctrine of avulsion? 7. In Williams v Booth, Griffith CJ concluded that the doctrine of accretion was not made out because it involved a ‘sudden and considerable alluvion’. Explain this conclusion. 168

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Boundaries and Encroachments for Land 3.26  An owner of land can only enforce ownership rights within the specific dimensions

of that land. Consequently, prior to purchasing land, an owner should inspect the boundaries to make sure that the physical measurements accord with those set out in the title documents. For example, in Victoria, the boundary of a land title is defined according to the survey lines. Where such lines have been removed, following adverse possession principles, they will accord with the boundary set out by any erected fence or wall that has been in place for a period of 15 years: Property Law Act 1958 (Vic) ss 269 and 271. Further, an owner of land does not own the minerals in the soil. Legislation in each state vests ownership of minerals in the Crown: Crown Lands Act 1989 (NSW); Mines Resources (Sustainable Development) Act (Vic) 1990 s 9; Mineral Resources Act 1989 (Qld) s 8; Mining Act 1978 (WA) s 9; Mining Act 1971 (SA) s 16; Mineral Resources Development Act 1995 (Tas) s 6; Minerals (Acquisition) Act (NT) s 3. The royal minerals of gold and silver vest in the Crown pursuant to Crown prerogative.32

Error in title 3.27  Where land is incorrectly described in the title and is subsequently conveyed to a

third party, the effect of the conveyance will depend upon the character of the land and the stage of the conveyance that has been reached. An error in old title land of which neither the vendor nor the purchaser is aware will result in the purchaser acquiring a ‘defective’ title. If the vendor is aware of the error and fails to disclose it to the purchaser, the purchaser may be entitled to set aside the contract. For example, see: Sale of Land Act 1962 (Vic) ss 3–32; Conveyancing Act 1919 (NSW) s 52A; Property Law Act 1974 (Qld) s 61. Where the land is Torrens title land, the registered proprietor will not acquire an indefeasible title if there has been a ‘wrong description’ of the land. If land has been included by wrong description, the registered proprietor cannot claim it; however, a bona fide purchaser for value will be protected. By contrast, if there is an error that has arisen as a result of an incorrect survey rather than a wrong description, the registered proprietor will, in the absence of fraud, acquire an indefeasible title. In all jurisdictions the Registrar is entitled to correct any error in the Register. However, a correction or new entry cannot prejudice any rights that may have been entered on the Register prior to the correction being made. This is discussed in further detail in Chapter 11.

Contractual errors 3.28  Where a boundary has been expressly or impliedly misdescribed in a contract of sale, the effect will depend upon whether or not the term was fundamental. If the contract clearly sets out that the vendor agrees to hand over all land as described, a failure to do so will usually amount to a fundamental breach entitling the purchaser to rescind. This will also apply where the vendor sets out that both land and buildings are being sold. For example, if a vendor sets out a specific measurement of the land to be sold within a contract of sale, and states that the land, along with the buildings erected on the land are for sale, the vendor must provide the purchaser with a good title to the land upon which the building is erected: Heath v Allen (1875) 1 VR 176. The 32. Cadia Holdings Pty Ltd v NSW (2010) 269 ALR 204. 169

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expectation of the purchaser is to receive both the structure and the land upon which the structure is built. Where the vendor does not hold title over the transferred land, he or she may fail to make a good title to the whole of the land described in the contract. As noted by the High Court in Svanosio v McNamara (1956) 96 CLR 186 at 205–7 per McTiernan, Williams and Webb JJ: A purchaser who purchases land which is represented to have a building erected thereon expects to obtain a complete building and not a building partly erected on land to which the vendor cannot make title. When the purchaser discovers that part of the building is not on the land he should object to the title. Such a misdescription is an objection to the title.

It is well established, however, that the vendor need not have a good title when the contract of sale is made, provided the vendor is able to confer a good title on the purchaser by the time for completion.33

Fence boundaries 3.29  In most situations a fence will sit upon the boundary of the land. This may not

always be the case and where a fence is situated on an incorrect boundary it may affect the land measurements if adverse possession is claimed over the area. It is always important when purchasing land to make sure that the physical boundaries correspond with the legal boundaries set out on the title documents. Where a fence does sit on the boundary, it is usual for each adjoining landowner to keep the fence in reasonable condition. This is not, however, a common law obligation. At common law there is no duty upon owners to build or maintain boundary fencing for adjoining properties: Churchill v Evans (1809) 1 Taunt 529; 127 ER 939. There are, however, a number of exceptions to this principle. Common law requires owners to prevent livestock from roaming onto adjoining land and therefore fencing becomes obligatory in this situation. An easement or covenant compelling fencing maintenance may be imposed on a landowner or the owner may be subject to enforceable contractual obligations. Statutory provisions now exist in each state regulating the responsibility of adjoining owners with respect to the boundary fence. For example, in Victoria, the Fences Act 1984 (Vic) s 7 sets out that if there is no dividing fence between adjoining lands, the owners are liable to contribute in equal proportion to a sufficient fence. If there is a dividing fence, the owners are liable to contribute in equal proportions to fencing works to ensure its continuing adequacy as a dividing fence. In the absence of an agreement between adjoining landowners, a court may determine liability.

33. Bell v Scott (1922) 30 CLR 387; H & R Securities Ltd v Sayer [2009] NSWSC 427 at [40]. 170

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EXTRACT

Fences Act 1968 — s 7 7  General principle — owners are liable to contribute in equal proportions to a sufficient dividing fence (1) If there is no dividing fence between adjoining lands, the owners of the adjoining lands are liable to contribute in equal proportions to fencing works and any subsidiary works for the construction of a sufficient dividing fence for the adjoining lands. (2) If there is a dividing fence between adjoining lands for which fencing works and any subsidiary works are required so that the dividing fence would be a sufficient dividing fence, the owners of the adjoining lands are liable to contribute in equal proportions to the fencing works and any subsidiary works for a sufficient dividing fence. (3) Nothing in this section prevents owners agreeing to contribute in other proportions to the fencing works and any subsidiary works for a sufficient dividing fence.

The provisions in other states are similar. Generally, where contribution is sought for the construction or repair of a boundary fence, a notice in writing must be served on the neighbour setting out the relevant area and the type of fencing necessary. See also Dividing Fences Act 1991 (NSW) ss 6–7; Neighbourhood Disputes (Dividing Fences and Trees) Act 2011 (Qld) ss 20 and 21 (with s 21(2) expressly setting out that an adjoining owner who wants to carry out fencing work for a dividing fence to a standard greater than the standard for a sufficient dividing fence is liable for the fencing work to the extent that it is greater than the standard for a sufficient dividing fence); Fences Act 1975 (SA) s 5; Dividing Fences Act 1961 (WA) s 7; Boundary Fences Act 1908 (Tas) s 8.

Encroachments on to land 3.30  In circumstances where a building encroaches (rather than exists entirely) upon land belonging to another, that building will vest in the land belonging to the other in accordance with the doctrine of fixtures with no compensation being available. Further, where the adjoining landowner is dissatisfied with the situation, they may apply for a range of different forms of relief including: removal, compensation, a land transfer or a lease.34 However, if the adjoining landowner encouraged the construction, proprietary estoppel or acquiescence may be raised to prevent the adjoining landowner from asserting full ownership in the building: Dillwyn v Llewellyn (1862) 4 De GF & J 517; 45 ER 1285. In Queensland and Western Australia, legislation entitles a person to apply to the court for relief where it can be proven that they have made a lasting improvement over land that belongs to another, in the genuine belief that the land belonged to them: Property Law Act (Qld) s 196; Property Law Act (WA) s 123(1). These provisions make it clear that where a genuine, mistaken belief is proven and equitable relief should, in the circumstances be issued, the court has the power to:

34. Burton v Winters [1993] 3 All ER 847. 171

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• issue an order conveying, transferring, leasing, conferring any easement, right or privilege in any person, over the whole or any part of the land on which the improvement has been made; • issue an order requiring any person to remove the improvement from the land; • issue an order for the payment of compensation in respect of any land or any improvement; or • issue an order that any person have or give possession of the land or improvement for such period and upon such terms and conditions as the court may specify. In Queensland, encroaching buildings are dealt with pursuant to the Property Law Act 1974. Section 185 sets out that relief may be refused at the discretion of the court based upon a range of factors including the character of the encroachment, the situation and value of the land, loss or damage that has or will be incurred by the encroaching and/or adjacent owner, and the circumstances of the encroachment. The Neighbourhood Disputes (Dividing Fences and Trees) Act 2011 (Qld) also deals with the encroachment of trees on adjoining properties. Section 52 seeks to outline the responsibilities of tree-owners without creating any separate cause of legal action. EXTRACT

Neighbourhood Disputes (Dividing Fences and Trees) Act 2011 (QLD) — s 52 52 Responsibilities of a tree-keeper (1) A tree-keeper is responsible for cutting and removing any branches of the tree that overhang a neighbour’s land. (2) A tree-keeper is responsible for ensuring that the tree does not cause — (a) serious injury to a person; or (b) serious damage to a person’s land or any property on a person’s land; or (c) substantial, ongoing and unreasonable interference with a person’s use and enjoyment of the person’s land. (3) This section does not create a civil cause of action based on a breach of a treekeeper’s responsibilities.

In New South Wales, difficulties encountered by encroaching buildings are dealt with under the Encroachment of Buildings Act 1922 (NSW), which confers upon the Land and Environment Court the power to resolve disputes that may arise between adjoining landowners with respect to an encroachment, by a building, which is of a permanent nature. Section 3(2) allows the court to make an order that it deems to be ‘just’ regarding the payment of compensation to the person whose land has been encroached, the transfer or lease or grant of an easement or other right to the owner of land upon that the encroachment exists from the owner of land where the encroachment has come from, or the removal of the encroachment. The court may exercise broad judicial discretion in making a determination as to the appropriate relief and take into account such factors as the extent and purpose of the encroachment, the knowledge of the encroaching owner, how the encroachment affects the value of the encroached land, loss or damages suffered, 172

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how long the encroachment has existed, and costs associated with the removal of the encroachment.35 Alternatively, an action for trespass may be brought, provided it can be established that a structure or object existing upon one piece of land encroaches upon the adjoining piece of land to the extent that it impedes or obstructs the proprietary rights of the adjoining landowner: Kelsen v Imperial Tobacco Co (Great Britain & Ireland) [1957] 2 QB 334. An action in nuisance may also be established where the encroachment amounts to continuous unlawful interference with the use or enjoyment of adjoining land: Munro v Southern Dairies Ltd [1955] VLR 332. It is possible for an encroachment to occur where the airspace of a landowner has been interfered with. Under the maxim cujus est solum ejus est usque ad coelum et ad inferos an encroachment may occur via any spatial interference. Where a structural encroachment interferes with the airspace of an adjoining property, the encroachment will usually constitute a trespass entitling the owner to seek compensation. Thus, items such as cranes, advertising signs or even an encroaching treehouse may constitute a trespass. In the words of Scott J in Anchor Brewhouse Developments Ltd v Berkley House (Docklands Development) Ltd (1987) 284 EG 625 at 629: ‘… if somebody erects, on his own land, a structure — part of which invades the air space above the land of another — the invasion is trespass’. 36 The short extract from the article by S Grattan, ‘Judicial Reasoning and the Adjudication of Airspace Trespass’ (1996) 4 Australian Property Law Journal 13 at 17, contains a brief outline of some of the cases and judicial rationales underlying trespass to airspace: … From the facts of the cases, the most serious infringement was in LPJ Investments Pty Ltd v Howard Chia Investments Pty Ltd (No 2) (1989) 24 NSWLR 490 where the defendant’s scaffolding extended 1.5 metres into the plaintiff ’s airspace for a length of 16 metres and at a height of 4.5 metres above the ground. In both Bendal Pty Ltd v Mirvac Projects Pty Ltd (1991) 23 NSWLR 464 and Meriton Apartments Pty Ltd v Baulderstone Pty Ltd (unreported, SC (NSW), No 4940 of 1991) the offending structures appear to have encroached on airspace above the buildings on the plaintiff ’s land. Described simply, the question in each of these cases was whether the court should allow the plaintiff to stop the defendant using the airspace above the plaintiff ’s land for which the plaintiff had no immediate use. In each of these cases the court answered the question in the affirmative. The defendant was held to have committed a trespass to the plaintiff ’s land (damage not being a necessary element of the tort). Because the trespass was a continuing one, the plaintiff was entitled to an injunction prohibiting the defendant from further infringing upon the plaintiff ’s airspace and requiring the removal of any encroaching structure still in place (despite the hardship that might be caused to the defendant). The courts in these cases have not labelled the plaintiff ’s conduct as selfish or unreasonable; in fact they have on occasions expressly disassociated themselves from any such suggestion. The courts have at times, however, expressed regret that they were not empowered by statute to refuse the granting of an injunction and instead allow the encroachment upon the plaintiff ’s airspace 35. See J and T Lonsdale v P Gilbert [2006] NSWLEC 30. See also Encroachments Act 1944 (SA); Planning (Urban Encroachment) Act 2008 (Qld); Encroachment of Buildings Act 1922 (NT). 36. See also the discussion by P O’Connor, ‘The Private Taking of Land: Adverse Possession, Encroachment by Buildings and Improvement Under a Mistake’ (2006) 33(1) University of Western Australia Law Review 31 at 46, where the author notes that boundary discrepancies and building encroachments are particularly likely to arise in new high density housing developments where units are sold off the plan as buildings and footings must be constructed exactly within the block. 173

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to continue on payment by the defendant to the plaintiff of proper compensation. These cases show that the law protects what seems to be the selfish interest of the landowner whose airspace is violated at the expense of the interest of the encroaching landowner, and possibly also at the expense of the public interest.

3.31 Revision Questions 1. What is the effect of an error in the description of Torrens title land? 2. If an error in the boundary description is included within the contract of sale, what relief can a purchaser seek? 3. What is the rationale for the common law assumption that an encroaching building will vest in title to the land belonging to the other? 4. Are there any circumstances that would justify the owner of the encroaching building retaining title? 5. Why can a landowner claim trespass to airspace by an encroaching structure even though the landowner had no immediate use for the airspace involved?

3.32  Answer Plan When a question requires an evaluation of the scope and character of a land interest the following factors should be taken into account:

• Does the land include a dwelling or is it vacant? • If a dwelling is attached, what fixtures are included with the dwelling? • Where it is not clear whether or not a chattel is a fixture, consider the overall circumstances to try and determine the purpose of the annexation in the particular circumstances. Consider whether the chattel was affixed for the benefit of the land as a whole, or in order to ensure that the chattel would function more effectively. Take account of such factors as: ºº the nature of the chattel; ºº the degree of annexation; ºº the title of the affixer to the goods; and ºº the nature of the goods and the reason why they were affixed to the dwelling. • Whether any legal or equitable rights to remove the affixed chattel exist and if so, what the nature and scope of such rights are and whether such rights remain enforceable or have been defeated by subsequent interests. • Once the scope and nature of the land attributes have been determined, consider the scope and boundaries of the land. Consider whether the land abuts water. Remember, common law riparian rights to water have been extinguished but statutory rights to access and use water may be granted in accordance with the relevant statutory framework. • If the land abuts tidal waters, consider where the boundary line will be. If the boundary line is determined by the high water mark, consider any rights the landowner may have to access the foreshore and navigate or fish upon the tidal rivers. Consider whether the common law rule has been abrogated or modified by statute. • If the land abuts non-tidal waters, consider whether the ad medium filum rule applies and whether that rule has been modified by legislation giving the Crown ownership and control of the alveus. In many states this has occurred.

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• Where the land abuts tidal waters, consider whether the boundaries of the land have been expanded by the gradual and imperceptible process of alluvion or dereliction by the sea, the wind or the air or whether the doctrine of avulsion means that the land remains with the original landowner. • Consider the exact measurement of the land. Measurements are set out in the certificate of title or associated title documents. If there is an incorrect measurement on the title, consider whether the error is one of description or survey. If the latter, a registered proprietor may acquire a good title, in the absence of fraud. • In measuring the land, consider whether the fences sit properly on the boundary. Make sure that the physical measurement corresponds with the measurements set out on the title and that the fence is sitting on the correct boundary. Adjoining landowners will be jointly liable to keep the fence in reasonable condition. Consider any relevant statutory obligations. • Consider whether there are any encroachments on the land. A building that encroaches on land will vest in the owner of the encroached land where it satisfies the fixtures test unless it can be proven that the adjoining landowner encouraged or allowed such an encroachment to occur. Examine any relevant statutory provisions.

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Chapter 4

Adverse Possession The Meaning of Adverse Possession 4.1 Outline of the Title Hierarchy 4.2 The Nature of Adverse Possession 4.3 Policy Rationales Underlying Adverse Possession 4.4 Case: ‘Should the Law Recognise the Acquisition of Title by Adverse Possession?’ 4.5 Revision Questions 4.6 Limitation Period 4.7 Extract: Limitation of Actions Act 1958 (Vic) — s 8 4.7 Against which Owner? 4.8 Factual Possession 4.9 Open and peaceful 4.10 Without consent 4.11 Revision Questions 4.12 Intention to Possess: Animus Possidendi 4.13 Case: JA Pye (Oxford) Ltd v Graham 4.14 Commentary 4.15 Case: Whittlesea City Council v Abbatangelo 4.16 Commentary 4.17 Revision Questions 4.18 Multiple Possessions 4.19 Case: Kierford Ridge Pty Ltd v Ward 4.20 Commentary 4.21 Disability and Fraud 4.22 Adverse Possession and the Torrens System 4.23 Extract: Real Property Act 1900 (NSW) — s 45D 4.23 Revision Questions 4.24 Answer Plan 4.25

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The Meaning of Adverse Possession 4.1  Adverse possession refers to a particular type of land possession, where the occupation by the possessor has endured for so long and is of such a character that it generates a limitation of actions defence in favour of the possessor. Where adverse possession can be established, the provisions of the limitation of actions legislation, as they exist in each state, will prevent the paper title owner from defending an adverse possession claim. The fact that an occupier is in possession of land does not necessarily mean that the possession is adverse in nature. Adverse possession will only exist where it can be established that the possession satisfies the requisite factual and intention requirements. It must be established that the possession has continued for the requisite period of time and that the possessor (or a series of possessors) have physically occupied this land, continuously and uninterrupted in a manner akin to that of the paper title owner. The different tests and principles that have evolved to guide these tests were outlined by Ashley, Redlich JJA and Kyrou AJA in Whittlesea City Council v Abbatangelo (2009) 259 ALR 56 at [5]–[6]: (1) In the absence of evidence to the contrary, the owner of land with the paper title is deemed to be in possession of the land, as being the person with the prima facie right to possession. The law will thus, without reluctance, ascribe possession either to the paper owner or to persons who can establish a title as claiming through the paper owner. (2) If the law is to attribute possession of land to a person who can establish no paper title to possession, he must be shown to have both factual possession and the requisite intention to possess (animus possidendi).1 (3) Factual possession signifies an appropriate degree of physical control. It must be a single and [exclusive] possession, … The question what acts constitute a sufficient degree of exclusive physical control must depend on the circumstances, in particular the nature of the land and the manner in which land of that nature is commonly used or enjoyed … It is impossible to generalise with any precision as to what acts will or will not suffice to evidence factual possession … Everything must depend on the particular circumstances, but broadly, I think what must be shown as constituting factual possession is that the alleged possessor has been dealing with the land in question as an occupying owner might have been expected to deal with it and that no-one else has done so. (4) The animus possidendi, which is also necessary to constitute possession, … involves the intention, in one’s own name and on one’s own behalf, to exclude the world at large, including the owner with the paper title if he be not himself the possessor, so far as is reasonably practicable and so far as the processes of the law will allow … the courts will, in my judgment, require clear and affirmative evidence that the trespasser, claiming that he has acquired possession, not only had the requisite intention to possess, but made such intention clear to the world. If his acts are open to more than one interpretation and he has not made it perfectly plain to the world at large by his actions or words that he has intended to exclude the owner as best he can, the courts will treat him as not having had the [requisite] animus possidendi and consequently as not having dispossessed the owner. To those principles should be added and/or highlighted the following: • When the law speaks of an intention to exclude the world at large, including the true owner, it does not mean that there must be a conscious intention to exclude 1. It is important to differentiate between the defendant possessor and the paper title owner. It is not possible for an owner to claim adverse possession against him or herself: Phillips v Southage Pty Ltd [2014] VSCA 17 at [75]. 177

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•

• • • •

•

the true owner. What is required is an intention to exercise exclusive control: see Ocean Estates v Pinder [1969] 2 AC 19. And on that basis an intention to control the land, the adverse possessor actually believing himself or herself to be the true owner, is quite sufficient: see Bligh v Martin [1968] 1 WLR 804. As a number of authorities indicate, enclosure by itself prima facie indicates the requisite animus possidendi. As Cockburn CJ said in Seddon v Smith (1877) 36 LT 168 at 1609: ‘Enclosure is the strongest possible evidence of adverse possession.’ Russell LJ in George Wimpey & Co Ltd v Sohn [1967] Ch 487 at 511A, similarly observed: ‘Ordinarily, of course, enclosure is the most cogent evidence of adverse possession and of dispossession of the true owner.’ It is well established that it is no use for an alleged adverse possessor to rely on acts which are merely equivocal as regards the intention to exclude the true owner: see for example Tecbild Ltd v Chamberlain (1969) 20 P & CR 633 at 642 per Sachs LJ. A person asserting a claim to adverse possession may do so in reliance upon possession and intention to possess on the part of predecessors in title. Periods of possession may be aggregated, so long as there is no gap in possession. Acts of possession with respect to only part of land claimed by way of adverse possession may in all the circumstances constitute acts of possession with respect to all the land claimed. … Where a claimant originally enters upon land as a trespasser, authority and principle are consistent in saying that the claimant should be required to produce compelling evidence of intention to possess; in which circumstances acts said to indicate an intention to possess might readily be regarded as equivocal. … At least probably, once the limitation period has expired the interest of the adverse possessor, or of a person claiming through him, cannot be abandoned.2

Outline of the Title Hierarchy 4.2  Before moving on to consider the elements of adverse possession it is useful to consider what might be described as the ‘hierarchy’ of property rights that exist with respect to land. Appreciating the ‘relativity’ of each land title allows us to understand the nature and status of the adverse possession interest. • Common law estate: The highest and most enforceable form of land title is a common law estate, such as the fee simple estate. The holder of a vested estate in land holds a title that carries full ownership rights and that is enforceable against the rest of the world. • Adverse possession: Adverse possession is not the equivalent of a proprietary estate in land. While it occupies a higher status than ordinary possessory title, due to its enforceability (once established) against the paper title owner, it is not enforceable in rem against the entire world. Adverse possession is an absolute defence against the paper title owner; however, it is, in essence, a defence raised by a person in possession against the paper title owner legally entitled to take possession. Thus, adverse possession constitutes possessory title combined with an enforceable limitation of actions defence that equip the possessor with the necessary requirements for becoming the owner. As a defence, adverse possession 2. These guidelines were originally set out in Bayport Industries Pty Ltd v Watson (2006) V ConvR 54709 per Ashley J at [39]–[40]. 178

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is only enforceable against the paper title owner who is currently in possession. This means that it is not enforceable against every potential title holder in the land. For example, the adverse possession defence is not enforceable against the holder of a future interest in land, who holds title but possession is deferred until a future date. If the possessory rights of an owner are deferred until the future, the adverse possession defence will only begin to accrue at the point in the future when that possession vests. • Bare, possessory title: Bare possessory title amounts to a title that does not constitute adverse possession. This title will exist prior to the expiration of the limitation period. At this stage, the possessor holds a bare possessory title because the adverse possession is accumulating. Possession is both a physical and a legal concept (see  Chapter 2) and, once established, it confers both choate and inchoate aspects. A possessory title must, however, be contrasted from permissive use or merely passing through the land. In order to possess the land the paper title owner must not have consented to the occupation and the possessor must be in physical occupation. In the context of land, where the possession is of a sufficient degree that it results in the occupier having substantial control, a possessory title may arise. Possessory title is capable of being alienated (see Chapter 2) but is not enforceable against an owner: Asher v Whitlock (1865) LR 1 QB 1.

The Nature of Adverse Possession 4.3  Adverse possession over land will accrue in favour of a possessory titleholder

where all of the requisite elements have been properly established. The occupier must prove factual possession of the land, combined with the requisite intention, and this must continue for the entire limitation period. Where this can be proven, an adverse possession defence will arise. Once established, adverse possession confers upon the holder an absolute defence against the paper titleholder that allows the possessor to subsequently acquire title by registration or transfer. In this sense, adverse possession requirements do not actually confer full proprietary title upon the possessor but, rather, an elevated possessory title that equips the possessor with the capacity to acquire proprietary title.3 Adverse possession will only be enforceable against a paper title owner who, by virtue of their title, was entitled to exercise possession. In some situations, because land is a resource where ownership can be fragmented, different types of proprietary rights may exist over a single piece of land. Only those rights that carry current rights to possession may be adversely possessed.

3. The right to obtain registration of adverse possession title is set out in: Transfer of Land Act 1958 (Vic) ss 60–62; Transfer of Land Act 1893 (WA) ss 222–223A; Real Property Act 1886 (SA) s 80A (where the Registrar requires proof of 30 years adverse possession); Land Title Act 1994 (Qld) s 99; Real Property Act 1900 (NSW) s 45D(1); Land Titles Act 1980 (Tas) ss 138U, 138W(2), (4) and 138X. See also Perry v Clissold (1906) 4 CLR 374 at 377 where Macnaghten LJ said: ‘It cannot be disputed that a person in possession of land in the assumed character of owner and exercising peaceably the ordinary rights of ownership has a perfectly good title against all the world but the rightful owner. And if the rightful owner does not come forward and assert his title by process of law within the period prescribed by the provisions of the Statute of Limitations applicable to the case, his right is forever extinguished, and the possessory owner acquires an absolute title.’ 179

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LEGAL PROBLEM Emma acquires an interest in land for her life with remainder to Jack and Grace. Jack and Grace acquire a future interest (fee simple remainder) that carries no immediate right to possession. The right to possession will not vest until Emma dies. If an adverse possessor takes possession of the land while Emma is alive, for the requisite statutory period, with the requisite degree of control and intention, an adverse possession claim may arise against Emma. However, the adverse possessor cannot defend any claim that Jack and Grace may bring once Emma dies. In this situation, the interests of Jack and Grace will vest in possession and it becomes necessary for a further adverse possession period to be raised against Jack and Grace. The rationale for this is that you cannot punish an owner for failing to assert possessory rights in circumstances where those possessory rights do not yet form a part of their ownership bundle.

Policy Rationales Underlying Adverse Possession 4.4  It is important to appreciate the rationales underlying the principles of adverse possession. The law will not readily oust the rights of paper title owners to their land. The combined effect, however, of the paper titleholders not being in occupation of their land, not checking who might be in occupation of their land and/or not enforcing fundamental ownership rights (use, enjoyment, exclusion) over that land for a significant period of time has been found to be sufficient to justify the consequences of adverse possession. The justification process was outlined by Sir Thomas Plumer MR in Marquis Cholmondeley v Lord Clinton (1820) 2 Jac & W 1 at 139–40; 37 ER 527 at 577: The individual hardship will, upon the whole, be less, by withholding from one who has slept upon his right, and never yet possessed it, than to take away from the other what he has long been allowed to consider as his own, and on the faith of which, the plans in life, habits and experiences of himself and his family may have been … unalterably formed and established.

It is not easy to prove that an occupation of land constitutes adverse possession and, where the onerous tests can be satisfied, the positive acts of the occupier will be prioritised because of the failure to act by the paper title owner. In the words of Slade LJ in Buckinghamshire County Council v Moran [1990] Ch 623 at 636: ‘If the law is to attribute land to a person who can establish no paper title to possession, he must be shown to have both factual possession and the requisite intention to possess’. Some of the broader policies underlying the application of adverse possession include: • ensuring that property owners enforce their possessory rights to encourage effective management of land and deter inaction; • protecting the occupational rights and legitimate expectations of possessors against the possibility that, at any point, they may be ousted by the paper title owner, where the possession has endured for a significant length of time; • preventing the possibility of endless litigation over land; and • recognising the continued importance of possessory title, particularly in the context of land. The interconnection between the rationales underpinning the doctrine of adverse possession and a land system grounded in possession and the doctrine of relativity of title was explained by Fiona Burns, ‘Adverse Possession and Title By Registration Systems in Australia and England’ (2011) 35(3) Melbourne University Law Review 773 at 775: 180

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A system of land law based on possession and relativity of title which eschews a concept of absolute ownership has a significant weakness. There is always a danger that a person exercising possession and control over the land may be subject to a claim based on prior events by an earlier possessor who the law deems to have the better title. In order to deal with this, English law took a pragmatic response. Claims to land were barred by a statutorily based concept of limitation. As early as 1623, the Limitations Act 1623 barred the right of the true owner to recover possession by setting a fixed (albeit arbitrary) time limit for recovery. A person who had a long history of uncontested possession of the land was able to deal with it as an owner so that ‘[t]he door of justice … closed.’ The doctrine quietened title when it could be said that the documentary owner had ‘slept’ on his or her rights. The doctrine made sense in a preindustrial society when land was held by a relatively small group of persons and documentary exchanges were not necessarily the normal way of dealing with land. In any event, documentary exchanges could be irregular in nature and the documentation could be lost and destroyed. English (and Australian) scholars have recognised the historical importance of possession in the English common law and its role as the foundation for the traditional doctrine. Therefore, they have generally considered and accepted the operation and effect of adverse possession through the dual medieval lenses of ‘possession’ and ‘relativity of title’. While the doctrine was subject to a number of different statutes of limitations and the case law dealt with some important finer points, the fundamental principle of adverse possession remained intact and was not seriously challenged. The doctrine would not be challenged until these two concepts were themselves re-evaluated and were ultimately diminished in importance in England and Australia. The trigger for this was title by registration.

The importance of human rights in the context of adverse possession was examined in JA  Pye (Oxford) Ltd v United Kingdom [2007] ECHR 559 by the Grand Chamber of the European Court of Human Rights. The Chamber considered some of the foundations underlying the adverse possession principle. In particular, their Excellencies noted that the core principles associated with the limitation of actions legislation had their background in well-established social policies that in turn reflected the fundamental role of property. The court accepted at 567 that to ‘extinguish title where the former owner is prevented, as a consequence of the application of the law, from recovering possession of land cannot be said to be manifestly without foundation’. The Grand Chamber concluded, by ten votes to seven, that the enforcement of limitation of actions legislation in the United Kingdom did not, therefore, amount to a violation of Article 1 of Protocol 1 of the European Convention on Human Rights and Fundamental Freedoms.4 The Grand Chamber made the following comments: The applicant companies contended that their loss was so great, and the windfall to the Grahams so significant, that the fair balance required by Article 1 of Protocol No 1 was upset. The Court would first note that, in the case of James, the Court found that the view taken by Parliament as to the tenant’s ‘moral entitlement’ to ownership of the houses at issue fell within the State’s margin of appreciation. In the present case, too, whilst it would be strained to talk of the ‘acquired rights’ of an adverse possessor during the currency of the limitation period, it must be recalled that the registered land regime in the United Kingdom is a reflection of 4. Note that the Land Registration Act 2002 (UK) s 96 now makes it clear that no period of limitation shall run against any person in relation to a registered estate. Further, Sch 6 sets out that, after 10 years’ possession, a squatter may apply to the registrar to have his title registered. The registered proprietor then has 65 days to object. If he does not object, the possessor may be registered if he remains in possession for a further two years. If he does object, the registered proprietor has two years to take proceedings for possession. These principles are subject to limitations concerning unconscionability on the basis of estoppel or some other equitable entitlement retained by the possessor. 181

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a long-established system in which a term of years’ possession gave sufficient title to sell. Such arrangements fall within the State’s margin of appreciation, unless they give rise to results which are so anomalous as to render the legislation unacceptable. The acquisition of unassailable rights by the adverse possessor must go hand in hand with a corresponding loss of property rights for the former owner.

4.5  The extract from the following article provides a good outline of the rationales underlying adverse possession:

— ‘Should the Law Recognise the Acquisition of Title by Adverse Possession?’ — D K Irving (1994) 2 Australian Property Law Journal 17 … Classical liberal thought regards property rights as sources of stability and security that foster individual autonomy and are impervious to the passage of time. This view of property rights is not reflected in the common law, which is based on the notion of relativity of title. Land is never owned outright; rival claimants to possession each have a relative title. A person in possession is protected against all except those with a better claim, including the true owner. Consequently, title by adverse possession should not be viewed as an anomaly within property law; on the contrary, it is entirely consistent with the underlying theory of relativity of title. Adverse possession is often maligned through associating it with negative images of ‘land stealing’ and ‘squatter’s title’. However, most adverse possession cases are not of the ‘bad faith’ squatter paradigm. Many cases involve situations where the possessor holds an invalid document of title and eventually has to defend against the ‘true owner’ or someone claiming under the true owner, or where the boundary line observed by neighbouring property owners in practice does not correspond with what is recorded in their documents of title. Furthermore, by requiring adverse possession for a considerable period of time, currently set at 12 or 15 years, the legislatures of the individual states have sought to minimise the possibility of ‘land stealing’. Whether or not the law should recognise the acquisition of title by adverse possession is ultimately a question of public policy, requiring the balancing of competing principles. Possessory title involves the fundamental conceptual dilemma that the law appears to reward a wrongdoer by allowing acts of trespass ultimately to mature into legal title. Despite this strong moral argument against title by adverse possession, the law continues to recognise it. Recognition is often justified by reference to various policy considerations, many of which seem to have been accepted with little analysis or criticism. Consequently, it is important and appropriate to closely re-examine each of the following traditional rationales.

1. The law should discourage property owners from ‘sleeping’ on their rights. Although frequently invoked, this argument can only be a subsidiary one, because notice by the documentary owner of the accrual of the cause of action is not a precondition to the limitation period beginning to run. Furthermore, to deny protection to owners who have delayed in bringing an ejectment action effectively imposes a positive duty upon owners to police their property, involving expensive monitoring costs.

2. Interminable litigation founded upon stale claims is undesirable. This is undoubtedly true where there are evidentiary problems associated with establishing title. However, the principle of limitation applies even where the adverse possessor freely admits to never having had even a pretence of a right to possession and where the factual circumstances are clearly established. Thus, staleness can only be a partial explanation. 182

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3. The law should protect against the grave hardship which may ensue if an adverse possessor, who has occupied the property for a long period of time, is removed. Hardship is particularly clear in two situations: where the land was transferred many years ago without registration of a change of ownership, and appropriate evidence cannot now be obtained; and where the registered proprietor has vacated the land and a stranger has been in possession for many years, paying the rates and improving the land. This would be a persuasive argument were it not that hardship may also be caused by recognising possessory title, especially in circumstances where simple neighbourly indulgence may lead to the extinguishment of title, or where the owner did not know or could not know that the limitation period was running.

4. Title by adverse possession reduces the risks associated with conveyancing because defects are cured with time. It is submitted that this is the most convincing argument in support of possessory title. The recognition of title by adverse possession generally relieves purchasers from the need to investigate title back beyond 12 years (or 15 years in some states) where the vendor has been in possession throughout this period. Also, errors arising from inaccurate property descriptions will be cured with the passage of time. However, this rationale is not easily accommodated by the Torrens system of title by registration. Indeed, the recognition of inchoate and unregistered possessory claims clearly has the potential to actually increase the risk of conveyancing because it undermines the supremacy of the Register. On the other hand, there are occasions where the doctrine of adverse possession serves a beneficial purpose, for instance by providing proprietors of Torrens Title land with a remedy against legislative ambushes such as unregistered drainage reserves which would otherwise be an exception to indefeasibility of title.

5. Recognising title by adverse possession is economically efficient because it encourages the productive use of land. This justification for adverse possession contains a significant flaw, as it assumes that the use of the land by the adverse possessor maximises its value. Recognising possessory title provides an incentive for an adverse possessor to possess the land, rather than to use it efficiently. Moreover, there is no reason why the criterion of economic efficiency, rather than considerations of equity and fairness, should determine the content of property law. It is clear from the above discussion that there are powerful arguments both for and against recognising title by adverse possession. Despite the fact that none of the traditional justifications are entirely convincing, and that the moral argument against adverse possession appears formidable, it is really a situation of the lesser of two evils, because without possessory title, grave hardship may be caused and conveyancing practice would be made more uncertain. Consequently, it is submitted that the law should recognise the acquisition of title by adverse possession only within tight constraints, in order to ensure that the opposing public policy considerations are fairly balanced and that the paramount criterion of certainty of title is not prejudiced. I deal with some of these constraints below, in the context of reforming the law. The acceptance of possessory title within the Torrens Title system raises further complications which warrant consideration. Given that the chief purpose of the Torrens system is to provide certainty and indefeasibility of registered title, it can be strongly argued that adverse possession introduces substantial uncertainty, making the acquisition of title by adverse possession ‘inconsistent with the basic philosophy of the Torrens system, in that it permits the acquisition of rights not recorded in the Register and gives such rights priority over the existing title as recorded in the Register’. In response to this apparent fundamental incompatibility, it may be said that the theoretical sanctity of the Register is not a practical reality. Thus, although the availability of possessory titles might well hinder reliance on the Register, there are already many exceptions to indefeasibility of title, so why not one more? Furthermore, grave hardship and uncertainty may be caused were the law to deny recognition of the rights of people in 183

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adverse possession, particularly where there have been ‘off the Register’ dealings or where the true owner has abandoned possession. … See further: C N Brown and S M Williams, ‘Rethinking Adverse Possession: An Essay on Ownership and Possession’ (2010) 60 (3) Syracuse Law Review 583 where the authors made the following comments at 585: Adverse possession is an anachronistic doctrine within a legal context of mature statutory, constitutional, and common laws that have developed to address increasingly complex ownership models, competing interests, and facts. The doctrine unduly elevates possession over title. Possession is no longer the clearest, most unequivocal indication of ownership and there are increasingly valid and efficient reasons why an owner might be out of physical possession. Additionally, very few assume that real property is necessarily owned, in the fee simple absolute understanding of ownership, by the one who is in actual possession. Examples include mortgagees; leaseholds and licenses; cooperatives; time-shares; and condominiums. And, we have developed an intricate system of positive laws and rules to govern parties operating within these frameworks.5

4.6  Revision Questions 1. What is the difference between adverse possession and ordinary possession over land? 2. What are the consequences of adverse possession for a paper titleholder vested in possession? 3. Why is it important to protect the legitimate interests of occupiers of land? 4. Do you think that the rationale outlined by Sir Thomas Plumer MR in Marquis Cholmondeley v Lord Clinton is appropriate for a modern society where many adverse possession actions arise in the context of boundary disputes and the paper title owner was unaware of the error? 5. Do you agree with the conclusions of the Grand Chamber in JA Pye (Oxford) v  United Kingdom [2007] ECHR 559 that the limitation of actions legislation does not breach Article 1 of the Protocols in the European Convention on Human Rights and Fundamental Freedoms which states: Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law. 5. For further reading see: F Burns, ‘Adverse Possession and Title by Registration Systems in Australia and England’ (2011) 35 Melbourne University Law Review 773 (which argues that adverse possession suits a land system based upon possession and relativity of title; however, the introduction of title by registration in Australia and England has seriously challenged the retention and usefulness of adverse possession); J G Sprankling, ‘An Environmental Critique of Adverse Possession’ (1994) 79 Cornell Law Review 816 (which argues that owners who are aware of adverse possession are motivated to place their property in some form of minimum productive use); L A Fennell, ‘Efficient Trespass: The Case for “Bad Faith” Adverse Possession’ (2006) 100 Northwestern University Law Review 1037 (which argues that three clusters of justifications exist for adverse possession: (i) protecting the expectations or investments of the possessor; (ii) procedural values such as neatening titles, reducing litigation and increasing the security of landholdings, and (iii) prodding the sleeping owner or rewarding the productive possessor); and O Liivak and E M Penalver, ‘The Right Not to Use in Property and Patent Law’ (2013) 98 Cornell Law Review 1437 (which argues that primary utility of adverse possession is to penalise ‘severely inattentive non-use’). 184

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The preceding provisions shall not, however, in any way impair the right of a State to enforce such laws as it deems necessary to control the use of property in accordance with the general interest or to secure the payment of taxes or other contributions or penalties.

Limitation Period 4.7  The legislation in each state prescribes a different period of time for which a possessor of land must be in adverse possession. In Victoria, the period of time for which an occupier must adversely possess land before a defence can be raised against the owner is 15 years. This is set out in s 8 of the Limitation of Actions Act 1958 (Vic) extracted below. EXTRACT Limitation of Actions Act 1958 (Vic) — s 8 No action shall be brought by any person to recover any land after the expiration of fifteen years from the date on which the right of action accrued to him or, if it first accrued to some person through whom he claims, to that person: Provided that if the right of action first accrued to the Crown the action may be brought at any time before the expiration of fifteen years from the date on which the right of action accrued to some person other than the Crown.

Similar provisions exist in other states: see Limitation Act 1969 (NSW) s 27(2); Limitation Act 2005 (WA) s 4; Limitation Act 1974 (Tas) s 10(2); Limitation of Actions Act 1974 (Qld) s 13; Limitation of Actions Act 1936 (SA) s 4. In Victoria and South Australia the limitation period is 15 years. In all other states the limitation period is 12 years. When assessing the limitation period it is important to determine when the period actually commences. It is only possible for the limitation period to commence when the paper title owner is either physically dispossessed (of a house, or merely a portion of the land; for example, a fence built incorrectly), or where the paper title owner has discontinued possession and the occupier has assumed a possession that is ‘adverse’ in nature. It is not necessary to prove that the paper title owner has been ‘ousted’ or indeed that the possession was inconsistent with any use that the paper title owner might have. The words ‘dispossession’ and ‘possession’ must be given an ‘ordinary’ interpretation so that the real issue is whether the adverse possessor has gone into possession without the consent of the paper title owner, with the requisite degree of physical control over the land as well as the requisite intention. In the words of Lord Browne-Wilkinson in JA Pye (Oxford) Ltd v Graham [2003] 1 AC 419 at [36]–[38]: Many of the difficulties with these sections which I will have to consider are due to a conscious or subconscious feeling that in order for a squatter to gain title by lapse of time he has to act adversely to the paper title owner. It is said that he has to ‘oust’ the true owner in order to dispossess him. That he has to intend to exclude the whole world including the true owner; that the squatter’s use of the land has to be inconsistent with any present or future use by the owner. In my judgment much confusion and complication would be avoided if reference to adverse possession were to be avoided so far as possible and effect given to the clear words of the Acts. The question is simply whether the defendant squatter has dispossessed the paper owner by going into ordinary possession of the land for the requisite period without the consent of the owner. It is clearly established that the taking or continuation of possession by a squatter with the actual consent of the paper title owner does not constitute dispossession or possession by the squatter for the purposes of the Act. Beyond that, as Slade J said, the 185

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words possess and dispossess are to be given their ordinary meaning. It is sometimes said that ouster by the squatter is necessary to constitute a dispossession: see for example per Fry J in Rains v Buxton (1880) 14 Ch D 537 at 539. The word ‘ouster’ is derived from the old law of adverse possession and has overtones of confrontational, knowing removal of the true owner from possession. Such an approach is quite incorrect. ‘There will be a “dispossession” of the paper owner in any case where (there being no discontinuance of possession by the paper owner) a squatter assumes possession in the ordinary sense of the word. Except in the case of joint possessors, possession is single and exclusive. Therefore if the squatter is in possession the paper owner cannot be. If the paper owner was at one stage in possession of the land but the squatter’s subsequent occupation of it in law constitutes possession the squatter must have “dispossessed” the true owner …’.

The usual starting point for determining possession will ordinarily be that the ‘land’ is in the possession of the holder of the paper title in respect of the land, because that person has a prima facie right to possession of the land: Petkov v Lucerne Nominees Pty Ltd (1992) 7 WAR 163 at 167; Payne v Dwyer [2013] WASC 271 at [63]. In order to be ‘in possession’ for the purposes of adverse possession, it is necessary to exercise some form of control over the land. In Payne v Dwyer [2013] WASC 271, Pritchard J held that subsurface minerals, which were treated as land, could not be the subject of adverse possession because the ‘possession’ of the land in which those minerals were located could not be regarded as also constituting factual possession of the minerals which were the subject of the mineral interest. In Victoria and Queensland, the legislation makes it clear that adverse possession cannot be claimed against the Crown: Limitation of Actions Act 1958 (Vic) s 7 (this also includes claims against the Victorian Rail Track (s 7A), water authorities (s 7AB) and councils (s 7B); Limitation of Actions Act 1974 (Qld) s 6(4). In New South Wales and Tasmania, the legislation sets out that an action against the Crown will accrue after 30 years of adverse possession: Limitation Act 1969 (NSW) s  27(1) (but note the separate ban on adverse possession against the Crown in Crown Lands Act 1989 (NSW) s 170); Limitation Act 1974 (Tas) s 10(1). In South Australia, pursuant to the application of the Crown Suits Act 1769 (Imp), an action against the Crown will accrue after 60 years of adverse possession. The rationale for imposing either an extended period or a complete ban on adverse possession claims against the Crown is that it is often difficult for Crown representatives to fully manage and regulate large tracts of Crown land and, in such circumstance, it would not be fair to endorse the same adverse possession rationales that apply to private ownership. As outlined by the court in R v Steele [1834] NSWSC 111 at 115: The right of the soil, and of all lands in the colony, became vested immediately upon its settlement, in his Majesty, in right of his Crown, and as the representative of the British nation. His Majesty by his prerogatives is enabled to dispose of the lands so vested in the Crown. It is part of the law of England, that the prerogatives can only be exercised in a certain definite and legal manner. His Majesty can only alienate Crown lands by means of a record — that is by a grant, by letters patent, duly passed under the great seal of the Colony, according to law, and in conformity with his Majesty’s instructions to the Governor. It is also a clear case of the same law, that the right of the Crown cannot be taken away, by an adverse possession, under sixty years. The nullum tempus act, as it is called, was expressly passed to limit the remedy for the recovery of lands belonging to the Crown, to sixty years — without the statute, there would have been no limit of time — for it is a maxim of law, that the King cannot be disseized of his possessions; no laches are imputable to him — nullum tempus occurrit negi. Unless therefore the King have been out of possession of the land now claimed, for full sixty years, there is no defence in point of the mere time of adverse possession, to this action. 186

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A reference to the Crown in this context will include Crown agencies and the rule has been applied equally to both alienated and unalienated Crown land. In Water Corp v Hughes [2009] WASC 152, Martin CJ concluded that adverse possession could not be raised against the Water Corporation as it was an agency of the Crown and therefore protected by the legislative immunity set out in s 36 of the Limitation Act 1935 (WA). His Honour made the following comments at [32]: Immunity from loss of title by adverse possession is one of the long-standing immunities of the Crown. No doubt it reflects the practical difficulty faced by the Crown in monitoring all land in which it has an interest, for the purpose of bringing actions for recovery of possession within 12 years of the commencement of adverse possession and thereby avoiding ‘squatter’s title’. There may be a case for distinguishing between unalienated land of the Crown and land which the Crown holds through an agency, on the basis that in the latter case it might be more practical for the relevant agency to monitor its land. However, that is not a distinction which is evident in the language used in s 36 of the 1935 Act. That section applies to ‘the right, title, or interest of the Crown to or in any land’. The breadth of this language is inconsistent with any legislative intention to differentiate between an interest.

See also Roads Corporation v Pearse [2012] VSC 527 holding that the Victorian Roads Corporation is entitled to claim immunity of the Crown against adverse possession. In Western Australia, pursuant to the Limitation of Actions Act 2005 (WA), adverse possession may bind the Crown subject to s 76, which explicitly states that ‘the right, title or interest of the Crown to, or in, any land is not affected in any way by any possession of such land adverse to the Crown, and is to be taken as never having been so affected’. In Goodwin v Western Australian Sports Centre Trust [2014] WASC 138, the West Australian Supreme Court considered whether an adverse possession that accrued against a paper titleholder was, as a consequence of s 76, unenforceable by the possessor because the paper titleholder had passed the title to the Crown. Em Heenan J held that this interpretation of s 76 should be rejected because ownership of a legal title earlier in time excludes the creation of an inconsistent subsequent legal right. In this regard his Honour noted that it is a well-established principle of statutory interpretation that legislation is presumed not to interfere with vested proprietary interests nor to alienate vested proprietary interests without adequate compensation. His Honour noted that an alternative interpretation of the scope of section 76 was possible. He stated at [76]: It is possible to interpret s 76 of the Limitation Act 2005 in a way which respects the traditional principle and which does not destroy a fully matured possessory interest in land such as the plaintiff now asserts. For example, there may be a parcel of alienated land owned by the Crown over which a trespasser in occupation has been exercising adverse possession for a period less than 12 years and, before that time has expired, the Crown conveys or transfers the land to a private owner who does nothing to dispossess or dispute the claim of the trespasser until that occupant has continued in possession for a total of 12 years or more. Section 76 is capable of being construed as meaning that during the time when the Crown owned the land it was taken as never having been affected by that adverse possession with the result that, once it was transferred into private ownership, the occupant could not acquire a possessory title after the expiration of 12 years from the commencement of his adverse possession but only if his adverse possession continued for a full 12 years from the time the land passed out of the ownership of the Crown. That appears, with respect, to be a construction of s 76 which is fairly open on the language of the section itself and one which does not do any violence to the meaning of the section. It also would have the effect that it would not destroy or extinguish a fully matured possessory title which had accrued before the Crown or a State agent became the owner of the subject land and, in that way, would conform to the established principle. I see no reason not to adopt such an interpretation and I therefore do so.

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There is no restriction on the Crown acquiring adverse possession against a third party. In Roberts v Swangrove Estates Pty Ltd [2008] Ch 439, it was argued that adverse possession could not be raised by the Crown because it would invariably involve the commission of a tort and the Crown cannot commit a tort. In rejecting this argument Lindsay J began by quoting Lord Atkin’s dictum in United Australia Limited v Barclays Bank Limited [1941] AC 1 at 29: ‘When these ghosts of the past stand in the path of justice clanking their mediaeval chains the proper course for the judge is to pass through them undeterred’. His Honour held that previous authority that suggested that where the Crown could not be liable for a tort it could not take advantage of one, should, after the introduction of the Crown Proceedings Act 1947 (UK) be revised. Lord Atkin went on to conclude at 29 that it was impossible to accept that a rule that underlies the privileged and advantaged position of the Crown could mutate, post-1947, into a principle that could put the Crown ‘at a disadvantage not suffered by the ordinary citizen’. The conclusions of Lindsay J were confirmed by Roberts v Crown Estate Commissioners [2008] EWCA Civ 98 where Mummery, Jacob LJJ and Mann J held that the conclusions of the House of Lords in JA Pye (Oxford) Ltd v Graham [2003] 1 AC 419 were that the origin of the possession of the person relying on adverse possession is irrelevant to the barring of an accrued right of action. As such, it is possible for adverse possession to originate either in an unlawful entry into possession, dispossessing the paper title owner or in a lawful entry, such as a licence or tenancy, followed by a discontinuance of possession by the paper title owner. The important issue is that a right of action has accrued to the paper title owner and that the person claiming adverse possession is in ordinary exclusive possession of the disputed land for more than 12 years. With respect to the issue of the special position of the Crown, their Lordships further stated at [69]–[70] that: The pre-1947 bar was on a subject bringing an ordinary action against the Crown for the recovery of land claiming that it had committed a wrong against the subject. Now, however, that such an action is available against the Crown post-1947, it follows, in my view, that there is no possible legal basis for denying to the Crown the ability to plead a limitation defence that any of its subjects can plead or for treating the Crown’s ordinary possession of another’s land as other than that of a person in whose favour time can run under the 1980 Act. As Mr Hinks commented, there would be no point in making the Crown liable to an action in tort and to an action for the recovery of land in its possession if it remained, as Mr Wonnacott submitted it did, constitutionally incapable of committing a wrong by taking possession of the subject’s land and wrongfully retaining possession of it. In addition the provisions of the 1980 Act, its underlying policy and the general principles that can be extracted from it are all against acceptance of the constitutional principle. Quite apart from the express provision putting the Crown on the same footing as its subjects in matters of limitation, the general purpose and policy of setting time limits on actions for the recovery of land by the paper title owner (the protection of long continued possession of land in the public interest of certainty and stability, and the protection of defendants against the injustice of stale claims, which become more difficult to rebut with the loss of evidence in the passage of time) apply to land in the possession of the Crown as much as they apply in the case of land in the possession of another subject.

Incorporeal land rights cannot be adversely possessed, although they may be acquired by prescription. It is not possible to adversely possess rights, whether private or public, which are essentially incorporeal in nature. As outlined by Elias LJ in Smith R (on the application of) v The Land Registry (Peterborough) [2010] NPC 31 at [48], it is impossible to sustain the principle: 188

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… that the right of the public to use land as a highway can be defeated by adverse possession. The Limitation Act merely sets a 12 year limit to bringing an action to recover land. It has no application to rights of way. Nor could the principles readily apply to such public rights, given that the right can be exercised by a large and amorphous body of individuals none of whom may have sufficient interest or inclination to uphold the right as against the squatter.6

The Limitations Act 1958 (Vic) ss 7A and 7B now make it clear that water authorities and councils are not amenable to adverse possession claims.

Against which Owner? 4.8  Adverse possession is only available against a paper titleholder who is vested in

possession. This means that any limitation period will not begin to run against a future interest holder until possession vests and the interest becomes a full estate. Where the future interest applies to a life estate whether the future interest is remainder or reversionary, it will vest in possession and become a full estate as soon as the person holding the life estate dies provided there are no conditions to vesting. In this situation adverse possession may start to accrue at the point when the life estate holder dies. Where the future interest is a leasehold reversion, adverse possession may begin to accrue when the lease expires and the title is vested in possession in the hands of the landlord. Where the interest is bequeathed under a will, legislation generally sets out that the interest is deemed to vest at the date of death and not the administration of probate: see, for example, Limitation of Actions Act 1958 (Vic) s 9(2). If the future interest is subject to a contingency, it must be satisfied before title and possession can vest and any adverse possession period can commence. Equitable beneficial interests under a trust, like future interests, do not carry a vested right to possession. Hence, an adverse possession claim against trust property in land may be raised against a trustee but not against the beneficiaries. A third party may adversely possess trust property vested in the trustee and this will affect the title of the beneficiaries. However, a trustee cannot adversely possess against beneficiaries because the trustee is in possession of the trust property for the benefit of the beneficiaries and is subject to fiduciary and trustee duties. In New South Wales, s 47 of the Limitations Act 1969 sets out that a beneficiary bringing an action for breach of trust has 12 years to bring the action after the date on which the breach of action was either discovered or could, with reasonable diligence, have been discovered.7 The non-enforcement of adverse possession against future interest holders reflects the fact that adverse possession is a defence and that it only penalises paper titleholders who actually hold a possessory entitlement.

6. See also London Borough of Bromley v Morritt [1999] EWCA Civ 1631 at 1642, where Mummery LJ stated, ‘As a matter of law, an adverse possession or squatter’s title cannot be acquired to land over which a public right of way exists’. For a further discussion of the Australian position, see P Butt, Land Law, 6th ed, Lawbook Co, Sydney, 2010 at [22.02]. 7. In Victoria there is no limitation period applicable for either a breach of trust action or fraud: see Limitation of Actions Act 1958 (Vic) s 21(1). 189

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LEGAL PROBLEM Bob owns rural land and leases it out to X Co for 15 years, who plan to use it for mineral development in the future. Once the lease is executed, Bob acquires a fee simple reversion, which means Bob becomes the landlord but his possessory title is deferred for 15 years. In such a situation, a person who entered into adverse possession will have to wait until the expiration of the lease before any limitation period can commence against Bob. The rationale for this lies in the importance of ensuring that adverse possession is only enforceable against paper titleholders who have chosen not to enforce possession rather than interest holders who are actually unable to do so.

In New South Wales and South Australia, the general principle is that a future interest holder cannot be adversely possessed until, following the death of the preceding interests holder, the full limitation period has accrued.8 In other states, however, legislation has expedited the adverse possession period against ‘future title’ holders. For example, s 10(2) of the Limitation of Actions Act 1958 (Vic) requires an adverse possessor to be in possession for 15 years from when time starts running against the preceding interest holder or six years from the date when possession vests with the future interest holder — whichever is longer. This provision excludes leases as it does not apply to estates or interests that operate for a ‘term of years absolute’. The effect of this provision is to reduce the statutory time period in the context of its application to future interest holders. Under general principles, adverse possession would only arise 15 years from the date when the right to possession commenced. However, the Act makes it clear that the time frame is 15 years of adverse possession from the date when the cause of action accrues against the preceding life estate holder or six years of adverse possession from the date when the future interest vests in possession, whichever is longer.9 LEGAL PROBLEM X issues a grant to A for life with remainder to B in 1980. This confers an immediate life estate upon A and a fee simple remainder to B. A is then dispossessed by an adverse possessor, Y, in 2002. A dies in 2005. In this example B has until 2017 to reclaim possession against Y, which is 15 years from the date when adverse possession accrued against A (2002), or six years from when adverse possession commenced against B in 2005, which will be 2011. In this example, 2017 is the ‘longer period’ so that B will have until 2017 to reclaim possession. Alternatively, if A is dispossessed by Y in 1990 and then dies in 2000, B will have until 2005 to reclaim possession against Y (that is, 1990 plus 15 years), or 2006 (that is, 2000 plus six years). In this second scenario, 2006 is the ‘longer’ period so B will have until 2006 to reclaim possession.

Western Australia, ss 69 and 77 of the Limitation Act 1935 make it clear that in circumstances where a person holds both the life estate and a future interest, adverse possession will accrue against the future interest where it can be established that it has accrued against the life estate and that the future interest has vested in possession in the absence of any intervening interest. 8. See Limitation Act 1969 (NSW) s 31; Limitation of Actions Act 1936 (SA) s 9. 9. For equivalent provisions in other states, see Limitation Act 1935 (WA) s 7; Limitation Act 1974 (Tas) s 12(2); Limitation of Actions Act 1974 (Qld) s 15(2). 190

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Factual Possession 4.9  Once the limitation period is established, it must then be proven that the requisite factual possession is satisfied over the entire claimed area. This requires an examination of both the nature of the factual possession and the quality of the possessor’s intention. Lord Shaw in the Privy Council decision of Kirby v Cowderoy [1912] AC 599 at 609 concluded that possession ‘must be considered in every case with reference to the peculiar circumstances … the character and value of the property, the suitable and natural mode of using it, the course of conduct which the proprietor might reasonably be expected to follow with a due regard to his own interests; all these things, greatly varying as they must under various conditions, are to be taken into account in determining the sufficiency of a possession’. In JA Pye (Oxford) v Graham [2003] 1 AC 419, Lord Browne-Wilkinson noted the ‘crucial’ interaction between factual possession and intention. His Lordship noted that there can be no possession without intention and in this respect, where the requisite intention exists, factual possession will often follow. Nevertheless, common law has always separated out the physical and intention aspects of possession. His Lordship made the following comments at [40]: What is crucial is to understand that, without the requisite intention, in law there can be no possession. Remarks made by Clarke LJ in Lambeth London Borough Council v Blackburn (2001) 82 P & CR 494, 499 (‘it is not perhaps immediately obvious why the authorities have required a trespasser to establish an intention to possess as well as actual possession in order to prove the relevant adverse possession’) provided the starting point for a submission by Mr Lewison QC for the Grahams that there was no need, in order to show possession in law, to show separately an intention to possess. I do not think that Clarke LJ was under any misapprehension. But in any event there has always, both in Roman law and in common law, been a requirement to show an intention to possess in addition to objective acts of physical possession. Such intention may be, and frequently is, deduced from the physical acts themselves. But there is no doubt in my judgment that there are two separate elements in legal possession. So far as English law is concerned intention as a separate element is obviously necessary. Suppose a case where A is found to be in occupation of a locked house. He may be there as a squatter, as an overnight trespasser, or as a friend looking after the house of the paper owner during his absence on holiday. The acts done by A in any given period do not tell you whether there is legal possession. If A is there as a squatter he intends to stay as long as he can for his own benefit: his intention is an intention to possess. But if he only intends to trespass for the night or has expressly agreed to look after the house for his friend he does not have possession. It is not the nature of the acts which A does but the intention with which he does them which determines whether or not he is in possession.

To establish factual possession it must be proven that the claimant has taken physical control of the property that is ‘open, not secret; peaceful, not by force; and adverse, not by consent of the true owner’.10 Whether the requisite factual possession is established will depend upon the individual facts of each case. As noted in Murnane v Findlay [1926] VLR 80 at 87: ‘the possession of the land in every case must be considered with reference to the peculiar circumstances of the case’. Unless possession satisfies this criterion, it will not extinguish the documentary owner’s title. The onus of proving that the possession is adverse lies on the possessor.11 We now consider the different aspects of factual possession separately. Where the possession asserted is ‘equivocal’ there will generally be insufficient 10. Mulcahy v Curramore [1974] 2 NSWLR 464 at 475. 11. Solling v Broughton [1893] AC 556. 191

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evidence to show from those acts that possession of the owner was excluded.12 Where a person who is not the true owner of land voluntarily pays rates and taxes in respect of the land that fact will be given significance in determining whether adverse possession has been made, because it shows that the claimant for possessory title was not committing mere casual acts of trespass but had the deliberate purpose to exercise possession and dominion over the land: Bank of Victoria v Forbes (1887) XIII VLR 760 at 765. Further, it is not necessary for an owner to show that physical use has been made of every section of the land and acts of possession done on parts of a parcel of land may be evidence of possession of the whole: Higgs v Nassauvian Ltd [1975] AC 464 at 474. Possession should also be distinguished from use. The person in actual possession is in charge of the land. Others may use the land with his or her permission or pursuant to a specific and limited right, such as an easement, without taking possession away. Thus, use by the registered proprietor with the permission of the adverse possessor will not be sufficient in itself to stop time running in favour of the adverse possessor: KY Enterprises Pty Ltd v Darby [2013] VSC 484 at [137]. In order for the factual possession to cease it is necessary to establish that the title owner has retaken possession of the whole land in question. In Robertson v Butler [1915] VLR 31 at 37, it was found that entering upon a country grazing property three or four times and walking about, occasionally shooting rabbits, picnicking, and sometimes putting up notices about cutting wood did not amount to retaking possession by the title owner. Nor did writing a letter objecting to the unauthorised occupation or sending a man to enquire about grazing and to report back. Cussen J concluded that these acts did not amount to repossession and were sufficient to divest the possession from the adverse possessor and revest it in the title owner. In Butler v Dickson [2018] VCC 610, the court held at [74] that ‘in order to retake possession, the relevant act must be brought to the notice of the person in adverse possession. In determining whether factual possession has been satisfied, the nature of the interest claimed should be taken into account. It is not necessary for factual possession to exist over every part of the land if only a particular section is claimed. In many cases, the land claimed will be an accessway. In such situations, it may be possible for the plaintiff to seek either adverse possession or to claim an easement by prescription. Both cases, if successful, will allow a plaintiff to exercise rights of access however the two actions are fundamentally different. Adverse possession is grounded in physical acts of control of the land, whereas prescription is grounded in the open exercise of rights of access by the defendant in circumstances where the owner either knew or should have known of the exercise of these rights and, despite this knowledge, failed to stop them. Adverse possession of an access way will, however, require proof of factual possession over the access way and this can be established where the possessor has exercised the requisite degree of control. This is an objective assessment and does not require continuous possession. The use of the land must be such that if the owner did all of the acts usually associated with ownership, it would be obvious that the land was in possession.

Open and peaceful 4.10  Open means that the possession must be noticed by a documentary owner who

is reasonably careful in the management of his or her land interests and is not secretive. For example, the construction of permanent fencing of the land will generally satisfy this

12. Clement v Jones (1909) 8 CLR 133 at 139–140; South Maitland Railways Pty Ltd v Satellite Centres Australia Pty Ltd [2009] NSWSC 716 at [9]. 192

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requirement as it provides clear evidence to the world of the existence of some form of occupation: Petkov v Lucerne Nominees Pty Ltd (1992) 7 WAR 163; Re Riley and Real Property Act (1964) 82 WN (Pt 1) (NSW) 373 at 381. Mere use of the land that falls short of possession will be insufficient as will casual acts of trespass.13 The payment of rates can, together with other acts, indicate open factual possession; however, the failure to pay rates is not determinative because it is often the case that the rates continue to be paid by the paper title owner.14 Peaceful means that the possession must have occurred without violence. In Shaw v Garbutt (1996) 7 BPR 14,816 a proprietor, who was out of possession, went to his land and was turned away by a man wielding a gun. The man was not the adverse possessor and was not acting with the authority of the adverse possessor. Young J concluded that this act could not be attributed to the possessor, but in dicta noted that there was, nevertheless, no reason why the dispossessed proprietor could not have gone to the law to assert his rights and, because that option existed, it could not be said that he had been kept out of possession ‘by force’. His Honour discussed what a ‘peaceful’ possession meant and reviewed international and domestic decisions relating to this area. Young J made the following comments at 14,886: There has been some discussion of the meaning of ‘peaceable’ in the context of Positive Prescriptions in Indian Courts. In Muthu Goundan v Anantha Goundan AIR [1916] Madras 1001, 1004, Sadasiva Aiyar, J said, ‘As regards the meaning of the word “peaceable”, I am inclined to hold that it means that the plaintiff who claims to be the dominant owner has neither been obliged to resort to physical force himself at any time to exercise his right within the 20  years expiring within two years of the suit, nor had he been prevented by the use of physical force by the defendant in his enjoyment of such right. I do not think that oral oppositions and oral expressions of dissent by the defendant can prevent the enjoyment being peaceable.’ Bakewell, J at 1005 indicated that ‘peaceably’ meant, ‘the person who claims a right over the property of another must not have deprived him of that right by the use of force’ … Mitra (in B B Mitra on the Limitation Act, 1963, 19th edn, Eastern Law House, Calcutta, 1994), says at p 399, ‘The word “peaceably” means that the plaintiff who claims to be the dominant owner has neither been obliged to resort to physical force himself at any time to exercise his right within 20 years, nor has he been prevented by the use of physical force by the defendant in his enjoyment of such right’, Muthu Goundan. … Whether the user has been peaceable or not is a pure question of fact. Repeated obstructions or interruptions by or on behalf of the servient owner show that the enjoyment has not been as of right. … There may be some debate as to whether it is legitimate to apply judgments dealing with Positive Prescription and easements to Limitation. There is so little on the concept of ‘peaceable’ in cases dealing with Limitation that there is very little choice but to go to the prescription cases and consider whether to apply them by analogy. In Eaton v The Swansea Waterworks Co, which was relied on in the Indian cases I have cited, the question was whether a watercourse had been enjoyed as of right for 20 years. There were two points involved in the case. The first was that on one occasion when the plaintiff ’s servant drew water from the watercourse he was summonsed and the plaintiff ’s son attended, defended the servant and paid a fine of one shilling and did not appeal. Evidence of this incident was rejected. The second point was that a juror asked the Judge what would have been the effect in law of a state of perpetual warfare between the parties which question the Judge did not answer. The Full Court of the Queen’s Bench granted a new trial on the basis that the evidence of a conviction should have been 13. Whittlesea City Council v Abbatangelo [2009] VSCA 188 at [6(g)]; Clement v Jones (1909) 8 CLR 133 at 140 per Griffith CJ. 14. Refina Pty Ltd v Binnie [2009] NSWSC 914 at [25] per Brereton J. 193

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admitted as evidence as an acknowledgment that the plaintiff did not enjoy the water as of right. Campbell CJ seemed to acquiesce in the proposition of counsel for the appellant that if there was perpetual warfare, then the jury may very well conclude that the water was not taken as of right. In Dalton v Angus (1881) 6 App Cas 740, 786, in the course of the Judges of England advising the House of Lords, Bowen J said, ‘It might, perhaps, be added with some show of reason that the user ought, if the analogy of lights and other easements were to be followed, to be neither violent nor contentious. The neighbour, without actual interruption of the user, ought perhaps, on principle, to be enabled by continuous and unmistakable protests to destroy its peaceable character, and so to annul one of the conditions upon which the presumption of right is raised.’ His Lordship based this statement on Eaton’s case. A brief survey of Canadian law suggests that it is not necessary that possession be ‘peaceful’; the claimant’s occupation of the land is adverse if it is actual, continuous, exclusive and ‘notorious’ (visible or obvious): McConaghy v Denmark (1880) 4 SCR 609; — ‘actual, constant, visible occupation … to the exclusion of the true owner’: Sherren v Pearson (1887) 14 SCR 581; Wood v LeBlanc (1904) 34 SCR 627; McLeod v McRae (1918) 43 DLR 350 (Ont); Clarke v Babbitt [1927] 2 DLR 7 (Canadian Supreme Court); — ‘open and visible, unequivocal and exclusive’: Stoddard v McKay (1970) 2 NBR (2d) 366 (New Brunswick); Crowley v Crowley (1984) 51 Nfld & PEIR 140; Tobias v Nolan (1985) 71 NSR (2d) 92 (Nova Scotia); Burke Estate v Nova Scotia (Attorney General) (1991) 107 NSR (2d) 91. Several United States decisions refer to the need for adverse possession to be ‘peaceable’: see, for example, North Fort Worth Townsite Co v Taylor (1924) 262 SW 505 (Tex); Anna Slattery et al v Neil B Adams et al (1954) 279 SW (2d) 445 (Tex); Mascall v Murray 149 P 517 (1915) (Or). However, ‘peaceable possession’ in these and other cases has been equated not with the use of force or threats to defend possession of the land, but merely with continuous occupation. ‘Peaceable possession’ has been held to be ‘synonymous with “uninterrupted possession”, and meaning only that possession must be continuous and exclusive’ (Hays v De Atley (1923) 212 P 296 (Mont)). It appears that ‘peaceable possession’ is established where possession of the land is not disturbed by the commencement of a suit for possession (Glover v Pfeuffer (1914) 163 SW 984 (Tex)) or possession is not physically interrupted (Gusheroski v Lewis (1946) 167 P (2d) 390 (Ariz)). In two New South Wales cases the conduct of a claimant in warning people off property has been characterised as an act going to establish possession of the land. Harnett v Green (No 2) (1883) 4 LR (NSW) 292 (L) was an action for trespass to a large parcel of waste land. The defendant claimed adverse possession of the property on the grounds that he was accustomed to walking over the land on Sundays, had sometimes received payment from persons cutting timber on the land, and had occasionally, when finding other persons on the property, warned them off, informing them that they were trespassing. Although in that case the defendant’s actions were found not sufficient (given the size of the property) to establish possessory title, what is significant is that the act of warning persons off the land was treated as an act of possession. In certain circumstances, and in conjunction with other conduct, such behaviour might support a claim to possessory title; it was not conduct which disqualified the defendant from alleging he had been in ‘adverse’ possession of the land. Similar conduct was found to constitute an act of possession by Bryson J in Beever v Spaceline Engineering Pty Limited, where the person in possession had warned other persons off the land and ‘once threatened a surveyor walking on [the land] with a shotgun’. Whilst this was held to be ‘very unsatisfactory behaviour’ nonetheless it was ‘an act of possession, in that it asserted a right to control the presence of the other person’.

In Bartlett v Ryan [2000] NSWSC 807, Hamilton J considered the conclusions of Young J in Shaw v Garbutt and concluded that it was arguable that the facts of the case did not satisfy the requirement that the possession be peaceful. His Honour made the following comments at [18]: 194

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It seems to me that there may be a real argument that the facts alleged may fall outside the concept of peaceable possession, whatever may have been decided by Young J in Shaw v  Garbutt. Authority on the ambit of peaceable possession is not easy to find. However, it seems to me arguable that the possession is not peaceable if the owner by reason of the adverse possessor’s conduct was frightened to go to law and this seems to receive some support from what was said by Sir Robert McMillan CJ in Hough v Taylor (1927) 29 WALR 97 at 98: The nature of the user which the plaintiff has to prove is set out in paragraph 524 of the 11th volume of Halsbury in these words: ‘The user or enjoyment of an alleged right in order to support a prescriptive claim, under the doctrine of prescription at